KRONOS INTERNATIONAL, INC.
(euro)400,000,000
6 1/2% Senior Secured Notes due 2013
PURCHASE AGREEMENT
April 5, 2006
DEUTSCHE BANK AG LONDON
1 Great Winchester Street
London EC2N 2DB, UK
Ladies and Gentlemen:
Kronos International, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchaser
(euro)400,000,000 aggregate principal amount of its 6 1/2% Senior Secured Notes
due 2013, Series A (the "Notes"). The Notes are to be issued under the indenture
(the "Indenture") dated as of April 11, 2006 by and between the Company and The
Bank of New York, as Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated April 3, 2006 (the "Preliminary
Memorandum") and has prepared a Pricing Supplement (the "Pricing Supplement")
dated April 5, 2006, setting forth or including a description of the terms of
the Notes, the terms of the offering of the Notes, a description of the Company
and any material developments relating to the Company occurring after the date
of the most recent historical financial statements included therein. As used
herein, "Offering Memorandum" shall mean, with respect to any date or time
referred to in this Agreement, the Preliminary Memorandum, as supplemented by
the Pricing Supplement, in the most recent form that has been prepared and
delivered by the Company to the Initial Purchaser in connection with their
solicitation of offers to purchase Notes prior to the time this Agreement is
executed by the parties hereto (the "Time of Execution"). Promptly after the
Time of Execution and in any event no later than the second Business Day
following the Time of Execution, the Company will prepare and deliver to the
Initial Purchaser a Final Memorandum (the "Final Memorandum"), which will
consist of the Preliminary Memorandum with such changes therein as are required
to reflect the information contained in the Pricing Supplement, and from and
after the time such Final Memorandum is delivered to the Initial Purchaser, all
references herein to the Offering Memorandum shall be deemed to be a reference
to both the Offering Memorandum and the Final Memorandum.
The Initial Purchaser and its direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit B (the "Registration Rights
Agreement"), pursuant to which the Company has agreed, among other things, to
file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the Act.
The Initial Purchaser and its direct and indirect transferees of the
Notes will also be entitled to the benefits, and otherwise subject to the terms,
of the Security Documents (as defined in the Indenture) pursuant to which the
Company has, among other things, granted a senior security interest in the
Collateral (as defined in the Indenture), subject to certain exceptions and
otherwise in accordance with the terms of the Indenture.
2. Representations and Warranties. The Company represents and warrants
to and agrees with the Initial Purchaser that:
(a) As of the Time of Execution, the Offering Memorandum does not, and
at all times subsequent thereto up to the Closing Date (as defined in
Section 3 below) 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 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchaser
furnished to the Company in writing by the Initial Purchaser expressly for
use in the Offering Memorandum or any amendment or supplement thereto.
(b) As of the Closing Date: the Company will have the authorized,
issued and outstanding capitalization set forth in the Offering Memorandum;
all of the material subsidiaries of the Company are listed in Schedule 1A
attached hereto (each, a "Subsidiary" and collectively, the
"Subsidiaries"); all of the outstanding shares of capital stock of the
Company and the Subsidiaries have been, and as of the Closing Date will be,
duly authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights; all of
the outstanding shares of capital stock of the Company and of each of the
Subsidiaries will be free and clear of all liens, encumbrances, equities
and claims or restrictions on transferability (other than those imposed by
the Act, by the securities or "Blue Sky" laws of certain jurisdictions, by
the Security Documents or, with respect to Subsidiaries other than those
the capital stock of which is pledged pursuant to the Security Documents,
by the Credit Agreement (as defined in the Offering Memorandum)) or voting;
except as set forth in the Offering Memorandum, there are no (i) options,
warrants or other rights to purchase, (ii) agreements or other obligations
to issue or (iii) other rights to convert any obligation into, or exchange
any securities for, shares of capital stock of or ownership interests in
the Company or any of the Subsidiaries outstanding. Except for the
Subsidiaries and the additional subsidiaries listed on Schedule 1B attached
hereto or as disclosed in the Offering ----------- Memorandum, the Company
does not own, directly or indirectly, any shares of capital stock or any
other equity or long-term debt securities or have any equity interest in
any firm, partnership, joint venture or other entity.
(c) Each of the Company and the Subsidiaries is duly incorporated or
formed, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or formation and has all requisite
corporate or partnership power and authority to own its properties and
conduct its business as now conducted and as described in the Offering
Memorandum; each of the Company and the Subsidiaries is duly qualified to
do business as a foreign corporation or partnership, as applicable, in good
standing in all other jurisdictions where the ownership or leasing of its
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properties or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or in
the aggregate, have a material adverse effect on the business, condition
(financial or otherwise) or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes (as defined in the
Registration Rights Agreement). The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes, the Exchange Notes and the
Private Exchange Notes have each been duly and validly authorized by the
Company and, when executed by the Company and authenticated by the Trustee
in accordance with the provisions of the Indenture and, in the case of the
Notes, when delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company 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.
(e) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
Indenture (including provisions that are incorporated therein) meets the
requirements for qualification under the Trust Indenture Act of 1939, as
amended (the "TIA"). The execution and delivery of the Indenture have been
duly --- and validly authorized by the Company and (assuming the due
authorization, execution and delivery by the Trustee) the Indenture
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company 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.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery by the Initial
Purchaser), will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except that (A) 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 and (B) any
rights to indemnity or contribution thereunder may be limited by federal
and state securities laws and public policy considerations.
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by the Company. This Agreement has been
duly executed and delivered by the Company.
(h) Each of the Security Documents constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
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conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditor's rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding
therefore may be brought. On the Closing Date, the Collateral will conform
in all material respects to the description thereof contained in the
Offering Memorandum.
(i) The Security Documents, create in favor of the Collateral Agent
(as defined in the Indenture) for the benefit of the Trustee and the
holders of the Notes, a valid and enforceable perfected senior security
interest in and Lien upon (in each case in accordance with the provisions
of the relevant Security Document) all of the Collateral, superior to and
prior to the rights of all third persons and subject to no other Liens
except for Liens expressly permitted to exist on such Collateral by the
terms of the applicable Security Document.
(j) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the issuance
and sale by the Company of the Notes to the Initial Purchaser or the
consummation by the Company of the other transactions contemplated hereby,
except such as have been obtained and such as may be required under foreign
and state securities or "Blue Sky" laws in connection with the purchase and
resale of the Notes by the Initial Purchaser. None of the Company or the
Subsidiaries is (i) in violation of its certificate of incorporation or
bylaws (or similar organizational document), (ii) in breach or violation of
any statute, judgment, decree, order, rule or regulation applicable to any
of them or any of their respective properties or assets, except for any
such breach or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iii) in
breach of or default under (nor has any event occurred that, with notice or
passage of time or both, would constitute a default under) or in violation
of any of the terms or provisions of any indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of them
is a party or to which any of them or their respective properties or assets
is subject (collectively, "Contracts"), except for any such breach,
default, violation or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(k) The execution, delivery and performance by the Company of this
Agreement, the Indenture, the Registration Rights Agreement and the
Security Documents and the consummation by the Company of the transactions
contemplated hereby and thereby to be consummated by it (including, without
limitation, the issuance and sale of the Notes to the Initial Purchaser)
will not conflict with or constitute or result in a breach of or a default
under (or an event that with notice or passage of time or both would
constitute a default under) or violation of (i) any of the terms or
provisions of any Contract, except for any such conflict, breach,
violation, default or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (ii)
the certificate of incorporation or bylaws (or similar organizational
document) of the Company or any of the Subsidiaries or (iii) (assuming
compliance with all applicable state securities or "Blue Sky" laws and
assuming the accuracy of the representations and warranties of the Initial
Purchaser in Section 8 hereof) any statute, judgment, decree, order, rule
or regulation applicable to the Company or any of the Subsidiaries or any
of their respective properties or assets, except for any such conflict,
breach, violation, default or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The audited consolidated financial statements of the Company and
its subsidiaries included in the Offering Memorandum present fairly in all
material respects the financial position, results of operations and cash
flows of the Company and its subsidiaries at the dates and for the periods
to which they relate and have been prepared in accordance with accounting
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principles generally accepted in the United States of America applied on a
consistent basis, except as otherwise stated therein. The selected
financial and statistical data in the Offering Memorandum present fairly in
all material respects the information shown therein and have been prepared
and compiled on a basis consistent with the audited financial statements
included therein, except as otherwise stated therein.
PricewaterhouseCoopers, LLP (the "Independent Accountants") is an
independent registered public accounting firm within the meaning of the Act
and the rules and regulations promulgated thereunder.
(m) Except as disclosed in the Offering Memorandum, there is not
pending or, to the knowledge of the Company, threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of the
Subsidiaries is a party, or to which the property or assets of the Company
or any of the Subsidiaries are subject, before or brought by any court,
arbitrator or governmental agency or body that, if determined adversely to
the Company or any of the Subsidiaries, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or that
seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Notes to be sold hereunder or the
consummation of the other transactions to be consummated by the Company or
any of its Affiliates and described in the Offering Memorandum.
(n) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, presently required or necessary to own
or lease, as the case may be, and to operate its respective properties and
to carry on its respective businesses as now conducted as set forth in the
Offering Memorandum ("Permits"), except where the failure to obtain such
Permits would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; each of the Company and the Subsidiaries
has fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
impairment of the rights of the holder of any such Permit, except where any
such absence of fulfillment or performance, or revocation or termination,
would not reasonably be expected to have a Material Adverse Effect; and
none of the Company or the Subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such Permit,
except as described in the Offering Memorandum and except where such
revocation or modification would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(o) Since the date of the most recent financial statements appearing
in the Offering Memorandum, except as described in the Offering Memorandum,
(i) none of the Company or the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into or agreed to enter into
any transactions or contracts (written or oral) not in the ordinary course
of business, which liabilities, obligations, transactions or contracts
would, individually or in the aggregate, be materially adverse to the
business, condition (financial or otherwise) or results of operations of
the Companies and its Subsidiaries, taken as a whole, (ii) none of the
Company or the Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock (other than with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company or a wholly owned Subsidiary) and (iii) there
has not been any material change in the capital stock or long-term
indebtedness of the Company or the Subsidiaries.
(p) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where
the failure to so file such returns would not, individually or in the
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aggregate, reasonably be expected to have a Material Adverse Effect, and
has paid all taxes shown as due thereon; and, other than tax deficiencies
that the Company or any Subsidiary is contesting in good faith and for
which the Company or such Subsidiary has provided adequate reserves, there
is no tax deficiency that has been expressly asserted to the Company
against the Company or any of the Subsidiaries that would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(q) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources that the Company and the
Subsidiaries believe to be reliable and accurate with respect to such data.
(r) None of the Company, the Subsidiaries or any agent acting on their
behalf has taken or will take any action that might cause this Agreement or
the sale of the Notes to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or as
the same may hereafter be in effect, on the Closing Date.
(s) Each of the Company and the Subsidiaries has good title to all
real property and good title to all personal property described in the
Offering Memorandum as being owned by it free and clear of all liens,
charges, encumbrances or restrictions, except as described in the Offering
Memorandum or pursuant to the Credit Agreement or to the extent the failure
to have such title or the existence of such liens, charges, encumbrances or
restrictions would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. All leases, contracts and
agreements to which the Company or any of the Subsidiaries is a party or by
which any of them is bound are valid and enforceable against the Company or
such Subsidiary, to the Company's knowledge, and are valid and enforceable
against the other party or parties thereto and are in full force and effect
with only such exceptions as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and
the Subsidiaries own or possess adequate licenses or other rights to use
all patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses now operated by them as
described in the Offering Memorandum, except where the failure to own or
possess the foregoing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. None of the
Company or the Subsidiaries has received any written (or, to the Company's
knowledge, oral) notice of infringement of or conflict with (or knows of
any such infringement of or conflict with) expressly asserted (in writing)
rights of others with respect to any patents, trademarks, service marks,
trade names, copyrights or know-how that, if such assertion of infringement
or conflict were sustained, would reasonably be expected to have a Material
Adverse Effect.
(t) There are no legal or governmental proceedings involving or
affecting the Company or any Subsidiary or any of their respective
properties or assets that are of such materiality that such proceedings
would be required to be described in a prospectus pursuant to the Act and
that are not described in the Offering Memorandum, nor are there any
material contracts or agreements that are of such materiality that the same
would be required to be described in a prospectus pursuant to the Act (but
excluding, for the avoidance of doubt, any contract that need not be so
described in a registration statement filed under the Act, and containing
such prospectus, other than by the filing of such contract as an exhibit to
such registration statement) that are not described in the Offering
Memorandum.
(u) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (A) each of the Company and
the Subsidiaries is in compliance with and not subject to liability under
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applicable Environmental Laws (as defined below), (B) each of the Company
and the Subsidiaries has made all filings and provided all notices required
under any applicable Environmental Law, and has and is in compliance with
all Permits required under any applicable Environmental Laws and each of
them is in full force and effect, (C) except as disclosed in the Offering
Memorandum, 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
knowledge of the Company or any of the Subsidiaries, threatened against the
Company or any of the Subsidiaries under any Environmental Law, (D) no
lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property owned,
operated, leased or controlled by the Company or any of the Subsidiaries,
(E) none of the Company or the Subsidiaries has received notice that it has
been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law and (F) no property or facility of
the Company or any of the Subsidiaries is (i) listed or proposed for
listing on the National Priorities List under CERCLA or (ii) listed in the
Comprehensive Environmental Response, Compensation and Liability
Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or
employee health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges, releases or
threatened releases of hazardous materials into the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of
hazardous materials, and (iii) underground and aboveground storage tanks
and related piping, and emissions, discharges, releases or threatened
releases therefrom.
(v) There is no strike, organized labor dispute, labor slowdown or
work stoppage with the employees of the Company or any of the Subsidiaries
that is pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(w) Each of the Company and the Subsidiaries carries insurance in such
amounts and covering such risks as are reasonably believed by it to be
adequate, in all material respects, for the conduct of its business and the
value of its properties.
(x) Except as disclosed in the Offering Memorandum, none of the
Company or the Subsidiaries has any material liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or analogous foreign plans governed by analogous foreign
regulation, to which the Company or any of the Subsidiaries makes or,
within the prior six years has made, a contribution and in which any
employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each Subsidiary is
in compliance in all material respects with all applicable provisions of
ERISA.
(y) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records within the meaning of Section 13(b)(2) of the
Exchange Act and (ii) maintains internal accounting controls that provide
reasonable assurance that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions are
7
recorded as necessary to permit preparation of its financial statements and
to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's general or specific
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals. The Company and the
Subsidiaries maintain systems of "internal control over financial
reporting" (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or
under the supervision of, management to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with accounting
principles generally accepted in the United States of America.
(z) The Company and the Subsidiaries maintain an effective system of
"disclosure controls and procedures" (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission's rules and forms, including
controls and procedures designed to ensure that such information is
accumulated and communicated to the Company's management as appropriate to
allow timely decisions regarding required disclosure. The Company and the
Subsidiaries have carried out evaluations, with the participation of
management, of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(aa) None of the Company or the Subsidiaries is or as a result of the
transactions contemplated hereby will become an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
(bb) The Notes, the Indenture and the Registration Rights Agreement
conform in all material respects to the descriptions thereof in the
Offering Memorandum.
(cc) No holder of securities of the Company or any Subsidiary will be
entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the Registration
Rights Agreement other than as expressly permitted thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of the Company and its subsidiaries (on a consolidated
basis, considered as a single enterprise for purposes of this paragraph)
will exceed the sum of its stated liabilities and identified contingent
liabilities; the Company and its subsidiaries (on a consolidated basis) are
not, nor will the Company and its subsidiaries (on a consolidated basis)
be, after giving effect to the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby,
(a) left with unreasonably small capital with which to carry on their
business as it is proposed to be conducted, (b) unable to pay their debts
(contingent or otherwise) as they mature or (c) otherwise insolvent.
(ee) None of the Company, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any "security" (as
defined in the Act) that is or could be integrated with the sale of the
Notes in a manner that would require the registration under the Act of the
8
Notes or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a
public offering within the meaning of Section 4(2) of the Act. Assuming the
truth and correctness of the representations and warranties of the Initial
Purchaser in Section 8 hereof and its compliance with its covenants in such
Section, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchaser in the manner contemplated
by this Agreement to register any of the Notes under the Act or to qualify
the Indenture under the TIA.
(ff) No securities of the Company or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Notes and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(gg) None of the Company or the Subsidiaries has taken, nor will any
of them 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 Notes.
(hh) None of the Company, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the
Initial Purchaser) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S")) with
respect to the Notes; the Company, the Subsidiaries and their respective
Affiliates and any person acting on its or their behalf (other than the
Initial Purchaser) have complied with the offering restrictions requirement
of Regulation S.
(ii) The Initial Purchaser is acting as an underwriter and not as an
advisor to the Company with respect to the offering contemplated hereby and
the Company has consulted its own financial and legal advisors to the
extent it has deemed appropriate.
Any certificate signed by any officer of the Company or any Subsidiary
and delivered (at the purchase and sale of the Notes on the Closing Date) to the
Initial Purchaser or to counsel for the Initial Purchaser shall be deemed a
representation and warranty by the Company to the Initial Purchaser as to the
matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. 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 to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase the Notes from the Company at 99.306% of their principal amount plus
accrued interest from April 11, 2006 to the Closing Date, less the Initial
Purchaser's fee of (euro)6,454,890. One or more certificates in definitive form
for the Notes that the Initial Purchaser has agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Initial Purchaser requests upon notice to the Company at least 36 hours
prior to the Closing Date, shall be delivered by or on behalf of the Company to
the Initial Purchaser, against payment by or on behalf of the Initial Purchaser
of the purchase price therefor by wire transfer (same day funds), to such
account or accounts as the Company shall specify prior to the Closing Date, or
by such means as the parties hereto shall agree prior to the Closing Date. Such
delivery of and payment for the Notes shall be made at the offices of Cahill
Gordon & Reindel LLP, Augustine House, 6A Austin Friars, London, England EC2N
2HA at 10:00 A.M., London time, on April 11, 2006, or at such other place, time
or date as the Initial Purchaser, on the one hand, and the Company, on the other
hand, may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date." The Company will make such certificate
or certificates for the Notes available for checking and packaging by the
Initial Purchaser at the offices of Deutsche Bank Securities Inc. in New York,
New York, or at such other place as Deutsche Bank Securities Inc. may designate,
at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes
to make an offering of the Notes at the price and upon the terms set forth in
the Offering Memorandum as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchaser is advisable.
9
5. Covenants of the Company. The Company covenants and agrees with the
Initial Purchaser that:
(a) Until the later of (i) the completion of the distribution of the
Notes by the Initial Purchaser and (ii) the Closing Date, the Company will
not amend or supplement the Offering Memorandum or file any report with the
Commission under the Exchange Act unless the Initial Purchaser shall
previously have been advised and furnished a copy for a reasonable period
of time prior to the proposed amendment, supplement or report and as to
which the Initial Purchaser shall have given its consent (not to be
unreasonably withheld). The Company will promptly, upon the reasonable
request of the Initial Purchaser or counsel for the Initial Purchaser, make
any amendments or supplements to the Offering Memorandum that may be
necessary or advisable in connection with the resale of the Notes by the
Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in arranging
for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such European Union, Canadian or United
States jurisdictions as the Initial Purchaser may designate and will
continue such qualifications in effect for as long as may be reasonably
necessary to complete the resale of the Notes; provided, however, that in
connection therewith, the Company shall not be required to qualify as a
foreign corporation (or any other foreign business organization) 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 Purchaser of the Notes or
the Private Exchange Notes, any event occurs or information becomes known
as a result of which the Offering 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 Offering Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchaser thereof and will prepare, at the
expense of the Company, an amendment or supplement to the Offering
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the Initial Purchaser
and to counsel for the Initial Purchaser as many copies of the Offering
Memorandum or any amendment or supplement thereto as the Initial Purchaser
may reasonably request.
(e) The Company will apply the net proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Offering Memorandum.
(f) Until the third anniversary of the Closing Date, the Company will
furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Company to the
Trustee or to the holders of the Notes and, as soon as available, copies of
any reports or financial statements furnished to or filed by the Company
with the Commission or any national securities exchange on which any class
of securities of the Company may be listed; provided, however, that any
such reports or financial statements furnished to or filed by the Company
with the Commission need not be separately furnished to the Initial
Purchaser if such reports or statements are publicly available through the
Commission's electronic data gathering and retrieval database.
(g) Prior to the Closing Date, the Company will furnish to the Initial
Purchaser, as soon as they have been prepared, a copy of any substantially
10
complete unaudited interim financial statements of the Company prepared in
the ordinary course of business for any period subsequent to the period
covered by the most recent financial statements appearing in the Offering
Memorandum.
(h) None of the Company or any of its Affiliates will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) that could be integrated with the sale
of the Notes in a manner which would require the registration under the Act
of the Notes.
(i) The Company will not, and will not permit any of the Subsidiaries
to, engage in any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) in connection with the
offering of the Notes 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, the Company
will make available at its expense, upon request, to any holder of such
Notes and any prospective purchasers thereof the information specified in
Rule 144A(d)(4) under the Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its commercially reasonable efforts to (i)
permit the Notes to be eligible for trading on the Euro MTF, the
alternative market of the Luxembourg Stock Exchange and (ii) permit the
Notes to be eligible for clearance and settlement through the Euroclear
System and Clearstream Banking, societe anonyme.
(l) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S) the Company will not register any
transfer of such Notes 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 Notes in the form of definitive
securities.
(m) The Company will comply with all of its agreements set forth in
the Indenture, the Registration Rights Agreement and the Security
Documents.
6. Expenses. The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Offering Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchaser of copies of the foregoing documents, (iii) the fees and disbursements
of the counsel, the accountants and any other experts or advisors retained by
the Company, (iv) preparation (including printing), issuance and delivery to the
11
Initial Purchaser of the Notes, (v) the qualification of the Notes under
European Union, Canadian and United States state securities and "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel for the
Initial Purchaser relating thereto, (vi) expenses in connection with any
meetings with prospective investors in the Notes, (vii) fees and expenses of the
Trustee and Luxembourg Listing Agent including fees and expenses of counsel,
(viii) all expenses and listing fees incurred in connection with the application
for listing of the Notes on the Luxembourg Stock Exchange and/or trading on the
Euro MTF, the alternative market of the Luxembourg Stock Exchange and (ix) any
fees charged by investment rating agencies for the rating of the Notes. If the
sale of the Notes provided for herein is not consummated because any condition
to the obligations of the Initial Purchaser set forth in Section 7 hereof is not
satisfied on the Closing Date, because this Agreement is terminated or because
of any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder (in any case other than solely by reason of a default by the Initial
Purchaser of its obligations hereunder after all conditions hereunder have been
satisfied in accordance herewith), the Company agrees to promptly reimburse the
Initial Purchaser upon demand for all out-of-pocket expenses (including
reasonable fees, disbursements and charges of Cahill Gordon & Reindel LLP,
counsel for the Initial Purchaser) that shall have been incurred by the Initial
Purchaser in connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation
of the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received (i)
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Locke Liddell & Sapp LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Initial Purchaser,
to the effect set forth in Exhibit A, (ii) the opinion, dated as of the
Closing Date and addressed to the Initial Purchaser, of Meilicke Hoffman &
Partner, German counsel to the Company, in form and substance reasonably
satisfactory to counsel for the Initial Purchaser, (iii) the opinion, dated
as of the Closing Date and addressed to the Initial Purchaser, of
Bech-Bruun Dragsted Law Firm, Danish counsel to the Company, in form and
substance reasonably satisfactory to the Initial Purchaser, (iv) the
opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Narbarro Nathanson, United Kingdom counsel to the Company, in
form and substance reasonably satisfactory to the Initial Purchaser, and
(v) the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of MB & Associes, French counsel to the Company, in form and
substance reasonably satisfactory to the Initial Purchaser.
(b) On the Closing Date, the Initial Purchaser shall have received the
opinion, in form and substance satisfactory to the Initial Purchaser, dated
as of the Closing Date and addressed to the Initial Purchaser, of Cahill
Gordon & Reindel LLP, counsel for the Initial Purchaser, with respect to
certain legal matters relating to this Agreement and such other related
matters as the Initial Purchaser may reasonably require. In rendering such
opinion, Cahill Gordon & Reindel LLP shall have received and may rely upon
such certificates and other documents and information as it may reasonably
request to pass upon such matters.
(c) On the date hereof, the Initial Purchaser shall have received from
the Independent Accountants a comfort letter dated the date hereof, in form
and substance satisfactory to counsel for the Initial Purchaser with
respect to the audited and any unaudited financial information in the
Preliminary Memorandum. On the Closing Date, the Initial Purchaser shall
have received from the Independent Accountants a comfort letter dated the
Closing Date, in form and substance reasonably satisfactory to counsel for
the Initial Purchaser, which shall extend to the financial information, if
any, contained in the Final Memorandum and not contained in the Preliminary
Memorandum.
(d) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the Time of Execution
and on and as of the Closing Date as if made on and as of the Closing Date;
the statements of the Company's officers made in any certificate signed by
them delivered on or as of the Closing Date in accordance with the
provisions hereof shall be true and correct on and as of the date made and
12
on and as of the Closing Date; the Company shall have performed in all
material respects all covenants and agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date; and, except as described in the Offering Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
subsequent to the date of the most recent financial statements in such
Offering Memorandum, there shall have been no event or development, and no
information shall have become known, that, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily
or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in
the Offering Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), none of the Company or any of the Subsidiaries
shall have sustained any loss or interference with respect to its business
or properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, organized labor
dispute, labor slowdown or work stoppage or from any legal or governmental
proceeding, order or decree, which loss or interference, individually or in
the aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(g) The Initial Purchaser shall have received a certificate of the
Company, dated the Closing Date, signed on behalf of the Company by its
Chief Executive Officer or any President or Vice President and the Chief
Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained
in this Agreement are true and correct on and as of the Time of
Execution and on and as of the Closing Date, and the Company has
performed in all material respects all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date
of the most recent financial statements in the Offering Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), no event or development has occurred, and no information has
become known, that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received the
Registration Rights Agreement executed by the Company and such agreement
shall be in full force and effect at the Closing Date.
(i) At or on the Closing Date the trustee for the Company's 8
7/8% senior secured notes due 2009 (the "Existing Notes") shall have
received from the Company an irrevocable notice of redemption of all
such Existing Notes effective as of the time of delivery of and
payment for the Notes. Concurrently with the time of delivery of and
payment for the Notes by the Initial Purchaser, the Company shall
irrevocably deposit or cause to be deposited with such trustee an
amount sufficient to pay and discharge the principal of, premium and
interest on the Existing Notes to such time.
(j) On or before the Closing Date, the Company shall have caused to be
delivered the following documents and instruments with regard to the
Collateral:
13
(i) to the Trustee (with a copy to the Initial Purchaser),
evidence of all registrations or filings in each of the offices where
such registrations or filings are necessary or, in the opinion of the
Initial Purchaser, desirable to perfect the Liens created or intended
to be created thereby;
(ii) to the Initial Purchaser and the Trustee, evidence
satisfactory to them of the payment of all filing fees and taxes in
connection with the filings and registrations contemplated in clause
(i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchaser and the Trustee, evidence as may
be reasonably requested that all other actions necessary to perfect
and, subject to Liens expressly permitted to exist by the terms of the
applicable Security Document, protect the Liens created or intended to
be created by the Security Documents have been taken.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser shall have received from the Company such further
documents, opinions, certificates, letters and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Company shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act; and (ii) it has and will solicit offers for the Notes only from, and
will offer the Notes only to, (A) in the case of offers inside the United
States, persons whom the Initial Purchaser reasonably believes to be qualified
institutional buyers within the meaning of Rule 144A under the Act
(individually, a "QIB") or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a QIB to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A and, in each case, in transactions under
Rule 144A and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("non-U.S. purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided,
however, that in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Offering Memorandum.
(b) The Initial Purchaser represents, warrants and covenants with
respect to offers and sales outside the United States that (i) it has and will
comply with all applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers Notes or has in its possession or
distributes the Offering Memorandum or any such other material, in all cases at
its own expense; (ii) the Notes have not been and will not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Act or pursuant to an exemption
from the registration requirements of the Act; and (iii) it has offered the
14
Notes and will offer and sell the Notes (A) as part of its distribution at any
time and (B) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of Regulation S
and, accordingly, neither it nor any persons acting on its behalf have engaged
or will engage in any directed selling efforts (within the meaning of Regulation
S) with respect to the Notes, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S.
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser, each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and any U.S. affiliate of the Initial Purchaser
against any losses, claims, damages or liabilities to which the Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement of any material
fact contained in the Offering Memorandum or any amendment or supplement
thereto; or
(iii) the omission or alleged omission to state, in the Offering
Memorandum or any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein not
misleading,
and will reimburse, as incurred, the Initial Purchaser and each such controlling
person and such U.S. affiliates for any reasonable legal or other expenses
incurred by the Initial Purchaser or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Offering Memorandum or any amendment or supplement thereto in
reliance upon and in conformity with written information concerning the Initial
Purchaser furnished to the Company by the Initial Purchaser specifically for use
therein. The indemnity provided for in this Section 9 will be in addition to any
liability that the Company may otherwise have to the indemnified parties. The
Company shall not be liable under this Section 9 for any settlement of any claim
or action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Offering Memorandum or any amendment or supplement thereto, or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in any Memorandum or any amendment or supplement thereto,
15
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning the Initial Purchaser furnished
to the Company by the Initial Purchaser specifically for use therein; and
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 9 will be in addition to any
liability that the Initial Purchaser may otherwise have to the indemnified
parties. The Initial Purchaser shall not be liable under this Section 9 for any
settlement of any claim or action effected without its consent, which shall not
be unreasonably withheld. The Company shall not, without the prior written
consent of the Initial Purchaser, effect any settlement or compromise of any
pending or threatened proceeding in respect of which the Initial Purchaser is or
could have been a party, or indemnity could have been sought hereunder by the
Initial Purchaser, unless such settlement (A) includes an unconditional written
release of the Initial Purchaser, in form and substance reasonably satisfactory
to the Initial Purchaser, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of the Initial
Purchaser.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 9, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, promptly notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are materially different
from or materially additional to those available to the indemnifying party (it
being understood that, without any limitation as to the defenses which may be
materially different or materially additional, the availability of a due
diligence defense shall be deemed materially different and materially additional
for purposes of this Section 9(c)), or (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in each
such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchaser in the case of paragraph (a) of this Section
9 or the Company in the case of paragraph (b) of this Section 9, representing
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
16
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 9, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Company on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchaser. The relative fault of the
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 Company
on the one hand, or the Initial Purchaser on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Initial Purchaser agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Initial Purchaser
shall not be obligated to make contributions hereunder that in the aggregate
exceed the total discounts, commissions and other compensation received by the
Initial Purchaser under this Agreement, less the aggregate amount of any damages
that the Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) in connection with a matter for
which contribution is otherwise available hereunder shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of the Company, each officer of the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers (on behalf of the Company) and the Initial Purchaser set forth in this
Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Initial
Purchaser or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6, 9, 10 and 15 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
17
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date if the Company shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto (other than as a result of a breach by
the Initial Purchaser of its obligations hereunder) or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, organized labor dispute, labor slowdown
or work stoppage or any legal or governmental proceeding, which loss or
interference, in the sole judgment of the Initial Purchaser, has had or has
a Material Adverse Effect, or there shall have been, in the sole judgment
of the Initial Purchaser, any event or development that, individually or in
the aggregate, has or could be reasonably likely to have a Material Adverse
Effect, except in each case as described in the Offering Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities generally
on the Luxembourg Stock Exchange, the Euro MTF, New York Stock Exchange,
American Stock Exchange or the NASDAQ National Market shall have been
suspended or materially limited or minimum or maximum prices shall, based
on trading activity, have been implemented on any such exchange or market;
(iii) a banking moratorium shall have been declared by authorities of
the Federal Republic of Germany, the United Kingdom, Norway, Denmark, New
York or the United States or a material disruption in commercial banking or
securities settlement or clearance services in any member state of the
European Union or the United States;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between any member state of the European Union or 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
adverse change in the financial markets of any member state of the Federal
Republic of Germany, the United Kingdom, Norway, Denmark, or the United
States which, in the case of (A), (B) or (C) above and in the sole judgment
of the Initial Purchaser, makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Notes as contemplated by the
Offering Memorandum; or
(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 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. Information Supplied by the Initial Purchaser. The statements set
forth in the last paragraph on the front cover page (as such paragraph is
supplemented by the Pricing Supplement) and in the second and third sentences of
the third paragraph under the heading "Private Placement" in the Offering
Memorandum (to the extent such statements relate to the Initial Purchaser)
constitute the only information furnished by the Initial Purchaser to the
Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Initial Purchaser, shall be mailed or delivered to Deutsche Bank AG
London, 1 Great Winchester Street, London EC2N 2DB, United Kingdom, Attention:
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Corporate Finance Department; with a copy (which shall not be considered notice)
to Cahill Gordon & Reindel LLP, 80 Pine Street, New York, New York 10005,
Attention: Michael Ohler, Esq.; if sent to the Company, shall be mailed or
delivered to the Company at 5430 LBJ Freeway, Suite 1700, Dallas, TX 75240,
Attention: Robert D. Graham, with a copy (which shall not be considered notice)
to Locke Liddell & Sapp LLP, 2200 Ross Avenue, Suite 2200, Dallas, Texas
75201-6776, Attention: Don M. Glendenning, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
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 contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchaser contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Company, its officers 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 Notes from the
Initial Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchaser.
Very truly yours,
KRONOS INTERNATIONAL, INC.
By: /s/ John St. Wrba
-----------------------------------------------
Name: John St. Wrba
Title: Vice President and Assistant Secretary
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
DEUTSCHE BANK AG LONDON
By: /s/ David Ross
-----------------------------------------------
Name: David Ross
Title: Director
By: /s Bruce MacKenzie
Name: Bruce MacKenzie
Title: Director
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