Exhibit 10.1
Execution Copy
Saks Incorporated
And the Guarantors Listed on
Schedule IV Hereto
7.50% Convertible Notes Due
2013
Purchase
Agreement
May 20, 2009
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
As Representatives of the several
Initial Purchasers
named in Schedule I hereto (the
“Representatives”)
Ladies and Gentlemen:
Saks Incorporated, a Tennessee
corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the
Initial Purchasers named in Schedule I hereto (the “Initial
Purchasers”) (a) an aggregate of $105,000,000 principal
amount of the 7.50% Convertible Notes due December 1, 2013
(the “Notes”), convertible into common stock, par value
$0.10 per share of the Company (the “Stock”) (such
aggregate principal amount of Notes, the “Firm
Securities”) and, (b) at the election of the Initial
Purchasers, up to an aggregate of $15,000,000 additional principal
amount of Notes (the “Optional Securities”) (the Firm
Securities and the Optional Securities which the Initial Purchasers
elect to purchase pursuant to Section 2 hereof, and the
Guarantees as defined below, are herein collectively called the
“Securities”). Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated will act as joint global
coordinators and joint book-running managers for the
offering.
The punctual payment of all of the
Company’s obligations under the Notes are unconditionally and
irrevocably guaranteed, jointly and severally, by the Guarantors as
defined in the Indenture as defined in Section 1(g)
(collectively, the “Guarantors”), pursuant to their
guarantees (the “Guarantees”). Each of the Guarantors
as of the date of this Agreement is listed in Schedule IV attached
hereto.
1. The Company and each of the
Guarantors jointly and severally represents and warrants and agrees
with each of the Initial Purchasers that:
(a) A preliminary offering circular,
dated May 19, 2009 (the “Preliminary Offering
Circular”) and an offering circular, dated May 20, 2009
(the “Offering Circular”), have been prepared in
connection with the offering of the Securities and the shares of
Stock issuable upon conversion thereof. The Preliminary Offering
Circular, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(b)), is hereinafter
referred to as the “Pricing Circular”. Any reference to
the terms “Preliminary Offering Circular,”
“Pricing Circular” or “Offering Circular”
herein shall refer also to the Company’s Annual Report on
Form 10-K for the year ended January 31, 2009 (the “Form
10-K”), the Company’s current reports on Form 8-K filed
on February 5, 2009, March 2,
2009, March 5, 2009, April 9, 2009 and
May 19, 2009 (Item 5.02 only), the Company’s definitive
Proxy Statement on Schedule 14A (filed with the Commission on
April 24, 2009), and all other documents filed with the United
States Securities and Exchange Commission (the
“Commission”) pursuant to Section 13(a), 13(c) or
15(d) of the United States Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on or prior to the date
of such circular. A reference herein to the Preliminary Offering
Circular or the Offering Circular, as the case may be, as amended
or supplemented, as of any specified date, shall refer also to any
Additional Issuer Information (as defined in Section 5(f))
furnished by the Company prior to the completion of the
distribution of the Securities. All documents filed under the
Exchange Act that are incorporated by reference into the
Preliminary Offering Circular, the Pricing Circular or the Offering
Circular, as the case may be, or any amendment or supplement
thereto, are hereinafter called the “Exchange Act
Reports.” The Exchange Act Reports, when they were or are
filed with or furnished to the Commission, conformed or will
conform, in each case, in all material respects to the applicable
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of
this Agreement and prior to the execution of this Agreement except
as set forth on Schedule II(a) hereof. The Preliminary Offering
Circular and the Offering Circular and any amendments or
supplements thereto and the Exchange Act Reports did not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Initial Purchaser through the Representatives expressly for use
therein;
(b) For the purposes of this
Agreement, the “Applicable Time” is 6:05 pm (Eastern
time) on the date of this Agreement; the Pricing Circular as
supplemented by the information set forth in Schedule III hereto,
taken together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and each Company Supplemental Disclosure Document (as
defined in Section 6(a)) listed on Schedule II(b) hereto
does not conflict with the information
2
contained in the Pricing Circular or
the Offering Circular and each such Company Supplemental Disclosure
Document, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that this
representation and warranty shall not apply to statements or
omissions made in a Company Supplemental Disclosure Document in
reliance upon and in conformity with information furnished in
writing to the Company by an Initial Purchaser through the
Representatives expressly for use therein;
(c) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included in the Pricing Circular any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Disclosure Package
and the Offering Circular or as would not reasonably be expected to
have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its
subsidiaries, taken as whole, or on the performance by the Company
or the Guarantors of their respective obligations under the
Securities (a “Material Adverse Effect”); and, since
the respective dates as of which information is given in the
Pricing Circular, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general business, financial position or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Pricing Disclosure Package
and Offering Circular;
(d) The Company and its subsidiaries
have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Pricing Disclosure
Package and the Offering Circular or such as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and, except as described in the Pricing
Disclosure Package and the Offering Circular or as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, any real property, equipment and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, subject to the
effect of (1) bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally,
(2) the application of general principles of equity
(including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
enforcement is considered in proceedings at law or in equity), and
(3) applicable law and public policy with respect to rights to
indemnity and contribution (clauses (1) to (3), collectively,
the “Enforceability Exceptions”);
(e) The Company and each of the
Guarantors has been duly incorporated (or formed) and is validly
existing as a corporation or other legal entity in good standing
under the laws of its relevant jurisdiction of formation. Except as
would not, individually
3
or in the aggregate, reasonably be
expected to have a Material Adverse Effect, each of the Company and
the Guarantors has power and authority (corporate and other) to own
its properties and conduct its business as described in the Pricing
Disclosure Package and the Offering Circular, and has been duly
qualified as a foreign corporation (or other legal entity) for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction. To the extent
not included within the prior sentences, except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, each subsidiary of each of the Company and
each Guarantor (1) has been duly incorporated (or formed) and
is validly existing as a corporation (or other legal entity) in
good standing under the laws of its jurisdiction of formation, and
(2) has been duly qualified as a foreign corporation (or other
legal entity) for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification;
(f) The Company has an authorized
capitalization as set forth in the Pricing Disclosure Package and
the Offering Circular, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the shares of Stock
initially issuable upon conversion of the Notes have been duly and
validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Securities and
the Indenture referred to below, will be duly and validly issued,
fully paid and non-assessable, will conform to the description of
the Stock contained in the Pricing Disclosure Package and the
Offering Circular; and the issuance of the Stock issuable upon
conversion of the Notes will not be subject to any preemptive or
similar rights;
(g) The Securities have been duly
authorized and, when issued and delivered pursuant to this
Agreement and assuming due authentication thereof by the Trustee
and payment and delivery in accordance with this Agreement, will
have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company and the Guarantors entitled to the benefits provided by the
indenture to be dated as of May 27, 2009 (the
“Indenture”) between the Company and The Bank of New
York Trust Company, National Association, as Trustee (the
“Trustee”), under which they are to be issued, which
will be substantially in the form previously delivered to you,
subject to the Enforceability Exceptions. The Notes will be
convertible into Stock in accordance with their terms and the
Indenture. The Notes will rank equal in right of payment with all
of the Company’s other outstanding convertible notes. The
Indenture has been duly authorized and, when executed and delivered
by the Company, the Guarantors and the Trustee (assuming the due
authorization, execution and delivery by the Trustee and assuming
that the Indenture constitutes a valid and binding obligation of
the Trustee), the Indenture will constitute a valid and legally
binding obligation of the Company and the Guarantors, enforceable
against them in accordance with its terms, subject to the
Enforceability Exceptions; and the Securities and the Indenture
will conform to the descriptions thereof in the Pricing Disclosure
Package and the Offering Circular and will be in substantially the
form previously delivered to you;
4
(h) None of the transactions
contemplated by this Agreement (including, without limitation, the
use of the proceeds from the sale of the Securities) will violate
or result in a violation of Section 7 of the Exchange Act, or
any regulation promulgated thereunder, including without limitation
Regulations T, U and X of the Board of Governors of the Federal
Reserve System;
(i) Prior to the date hereof,
neither the Company nor the Guarantors nor any of their respective
affiliates who are “affiliated purchasers” as defined
under Rule 100 of Regulation M has taken any action which is
designed to or which has constituted or which could reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company in connection with the
offering of the Securities;
(j) The issue and sale of the
Securities and the compliance by the Company and the Guarantors
with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated (i) will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
the Guarantors or any of their respective subsidiaries is a party
or by which the Company or the Guarantors or any of their
respective subsidiaries is bound or to which any of the property or
assets of the Company or the Guarantors or any of their respective
subsidiaries are subject, nor (ii) will such action result in
any violation of the provisions of the Charter or By-laws (or other
organizational document) of the Company or any Guarantor, nor
(iii) will such action result in any material violation of any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
the Guarantors or any of their respective subsidiaries, or any of
their properties, except in the case of clause (i) above, as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company or
the Guarantors of the transactions contemplated by this Agreement
or the Indenture, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Initial Purchasers and
the listing of the shares of Stock on the New York Stock
Exchange;
(k) Neither the Company nor the
Guarantors is in violation of its Charter or By-laws or in default
in the performance or observance of any material obligation,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound;
(l) The statements set forth in the
Pricing Circular and the Offering Circular under the captions
(i) “Description of Notes”, “Description of
Capital Stock” and “Plan of Distribution,”
insofar as they purport to summarize the terms of the Securities
and the Stock, and (ii) “Certain United States Federal
Income Tax Considerations”, insofar as it
5
purports to summarize matters of
U.S. federal tax law and regulations or legal conclusions with
respect thereto, fairly summarize the matters described therein in
all material respects (based on the assumptions described
therein);
(m) Other than as set forth in the
Pricing Disclosure Package and the Offering Circular, there are no
legal or governmental proceedings pending to which the Company, any
Guarantor or any of their respective subsidiaries is a party or of
which any property of the Company, the Guarantors or any of their
respective subsidiaries is the subject which, if determined
adversely to the Company, any Guarantor or any of their respective
subsidiaries, would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and, to the best of
the Company’s and the Guarantors’ knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(n) When the Securities are issued
and delivered pursuant to this Agreement, the Securities will not
be of the same class (within the meaning of Rule 144A under the
United States Securities Act of 1933, as amended (the
“Act”)) as securities which are listed on a national
securities exchange registered under Section 6 of the United
States Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or quoted in a U.S. automated
inter-dealer quotation system;
(o) The Company is subject to the
reporting requirements of Section 13 of the Exchange Act; and
the Company has made all filings required by Section 13 and
the Commission’s rules and regulations promulgated thereunder
in a timely manner since January 29, 2008;
(p) The Company is not, and after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Pricing
Disclosure Package and the Offering Circular, will not be an
“investment company”, as such term is defined in the
United States Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(q) Neither the Company, the
Guarantors, nor any person acting on its or their behalf (provided
that no representation is made as to the Initial Purchasers or any
person acting on their behalf), has offered or sold the Securities
by means of any general solicitation or general advertising within
the meaning of Rule 502(c) under the Act;
(r) Except as previously disclosed
to you, within the preceding six months, neither the Company, the
Guarantors, nor any other person acting on its or their behalf
(provided that no representation is made as to the Initial
Purchasers or any person acting on their behalf) has offered or
sold to any person any Securities, or any securities of the same or
a similar class as the Securities that would be integrated with the
sale of the Securities in a manner that would require the
registration under the Securities Act of the Securities, other than
Securities offered or sold to the Initial Purchasers hereunder. The
Company and the Guarantors will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902
under the Act) of any Securities or any substantially similar
security issued by the Company, within six months
subsequent
6
to the date on which the
distribution of the Securities has been completed (as notified to
the Company by the Representatives), is made under restrictions and
other circumstances reasonably designed not to affect the status of
the offer and sale of the Securities in the United States and to
U.S. persons contemplated by this Agreement as transactions exempt
from the registration provisions of the Act;
(s) Except as disclosed in the
Pricing Disclosure Package and the Offering Circular, the Company
and its subsidiaries own, or have valid, binding and enforceable
licenses or other rights to use, free and clear of all liens,
charges, claims, encumbrances, pledges, security interests, defects
and other like restrictions, all Intellectual Property (as defined
below) necessary to conduct the business of the Company and its
subsidiaries in the manner presently conducted, without any
conflict with the rights of others, except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; “Intellectual Property” means
all patents, patent applications, trademarks, trademark
applications, trade names, service marks, service names,
copyrights, trade secrets, know how (including all unpatented or
unpatentable proprietary or confidential information, systems or
procedures), technology, inventions, designs, processes, methods,
technical data and information or other intangible asset, other
proprietary intellectual property right or any license or other
right to use any of the foregoing;
(t) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) of the Exchange Act) that complies with
the requirements of the Exchange Act and has been designed or
caused to be designed by the Company’s principal executive
officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting as of January 31, 2009, the
last date as which such control was evaluated, was effective and
the Company is not aware of any material weaknesses in its internal
control over financial reporting;
(u) Since the date of the latest
audited financial statements included or incorporated by reference
in the Pricing Circular, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting;
(v) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
of the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been
designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and the Company has carried out
evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act;
(w) There is and has been no
material failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection
therewith;
7
(x) PricewaterhouseCoopers LLP,
which has audited certain financial statements of the Company and
its subsidiaries and has audited the Company’s internal
control over financial reporting, is an independent registered
public accounting firm as required by the Act and the rules and
regulations of the Commission thereunder;
(y) Nothing has come to the
attention of the Company that has caused the Company to believe
that the statistical and market-related data included in the
Pricing Disclosure Package and the Offering Circular, if any, is
not based on or derived from sources that are reliable and accurate
in all material respects;
(z) Neither the Company nor any of
its subsidiaries, nor to the Company’s knowledge, any
affiliates, director, officer, or employee, agent or representative
of the Company or of any of its subsidiaries or affiliates, has
taken or will take any action in furtherance of an offer, payment,
promise to pay, or authorization or approval of the payment or
giving of money, property, gifts or anything else of value,
directly or indirectly, to any “government official”
(including any officer or employee of a government or
government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or
on behalf of any of the foregoing, or any political party or party
official or candidate for political office) to influence official
action or secure an improper advantage; and the Company and its
subsidiaries and affiliates have conducted their businesses in
material compliance with applicable anti-corruption laws and have
instituted and maintain and will continue to maintain policies and
procedures designed to promote and achieve compliance with such
laws and with the representation and warranty contained
herein;
(aa) The operations of the Company
and its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as
amended by Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the “USA PATRIOT Act”), and the
applicable anti-money laundering statutes of jurisdictions where
the Company and its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Anti-Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened; and
(bb) (i) Neither the Company,
the Guarantors nor any of their respective subsidiaries
(collectively, the “Entity”) or, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or
representative of the Entity, is an individual or entity
(“Person”) that is, or is owned or controlled by a
Person that is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union
(“EU”), Her Majesty’s Treasury
(“HMT”), or other relevant sanctions authority
(collectively, “Sanctions”), nor
8
(B) located, organized or resident
in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).
(ii) The Entity represents and
covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any
activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in any other manner that will
result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and
covenants that it has not knowingly engaged in, is not now
knowingly engaged in, and will not engage in, any dealings or
transactions with any Person, or in any country or territory, that
at the time of the dealing or transaction is or was the subject of
Sanctions.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue
and sell to each of the Initial Purchasers, and each of the Initial
Purchasers agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 100% of the principal amount
thereof, the principal amount of Firm Securities set forth opposite
the name of such Initial Purchaser in Schedule I hereto, and
(b) in the event and to the extent that the Initial Purchasers
shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to each of the
Initial Purchasers, and each of the Initial Purchasers agrees,
severally and not jointly, to purchase from the Company, at the
same purchase price set forth in clause (a) of this
Section 2, that portion of the aggregate principal amount of
the Optional Securities as to which such election shall have been
exercised (to be adjusted by the Representatives so as to eliminate
fractions of $1,000) determined by multiplying such aggregate
principal amount of Optional Securities by a fraction, the
numerator of which is the maximum aggregate principal amount of
Optional Securities which such Initial Purchaser is entitled to
purchase as set forth opposite the name of such Initial Purchaser
in Schedule I hereto and the denominator of which is the maximum
aggregate principal amount of Optional Securities which all of the
Initial Purchasers are entitled to purchase hereunder. The Company
will not be obligated to deliver any of the Firm Securities except
upon payment for all the Firm Securities to be purchased as
provided herein.
9
The Company hereby grants to the several Initial
Purchasers the right to purchase at their election, severally and
not jointly, up to an additional $15,000,000 in principal amount of
Optional Securities in the aggregate, at the purchase price set
forth in clause (a) of the first paragraph of this
Section 2, for the sole purpose of covering sales of
securities in excess of the aggregate principal amount of the Firm
Securities. Any such election to purchase Optional Securities may
be exercised by written notice from you to the Company, given
within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate principal amount of Optional
Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in
Section (4) hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of
the release of the Securities, the several Initial Purchasers
propose to offer the Securities for resale upon the terms and
conditions set forth in this Agreement, the Pricing Disclosure
Package and the Offering Circular, and each Initial Purchaser
hereby represents and warrants to, and agrees with, the Company,
severally and not jointly, that:
(a) It has not solicited offers for,
or offered or sold, and it will not solicit offers for, or offer or
sell, the Securities except only to persons within the United
States whom it reasonably believes are “qualified
institutional buyers” (“QIBs”) within the meaning
of Rule 144A under the Act in transactions meeting the requirements
of Rule 144A and in connection with each such sale, it has taken or
will take reasonable steps to ensure that the purchaser of
Securities is aware that such sale is being made in reliance upon
Rule 144A;
(b) It is an institutional
“Accredited Investor” as such term is defined in Rule
501 of Regulation D; and
(c) It has not solicited offers for,
or offered or sold, and will not offer or sell, the Securities by
means of any form of general solicitation or general advertising,
within the meaning of Rule 502(c) of Regulation D under the Act or
any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
Each Initial Purchaser acknowledges
and agrees that the Company and for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 8(a)
through (e) hereof, counsel for the Company and the
Guarantors, the Company’s General Counsel and counsel for the
Initial Purchasers respectively may rely upon the accuracy of the
representations and warranties of the Initial Purchasers and
compliance by the Initial Purchasers with their agreements
contained in Section 3 and each Initial Purchaser hereby
consents to such reliance.
4. (a) The Securities to be
purchased by each Initial Purchaser hereunder will be represented
by one or more definitive global Notes in book-entry form which
will be deposited by or on behalf of the Company with The
Depository Trust Company (“DTC”) or its designated
custodian. The Company will deliver the Securities to the
Representatives for the account of each Initial Purchaser, against
payment by or on behalf of such Initial Purchaser of the purchase
price therefor by wire transfer in Federal (same-day) funds, by
causing DTC to credit the Securities to the account of the
Representatives. The Company will cause the
10
certificates representing the Securities to be
made available to the Representatives for checking at least
twenty-four hours prior to the Time of Delivery (as defined below)
at the office of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York (the “Closing Location”).
The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 9:30 a.m., New York City time, on
May 27, 2009 or such other time and date as the
Representatives and the Company may agree upon in writing, and,
with respect to the Optional Securities, 9:30 a.m., New York City
time, on the date specified by the Representatives in the written
notice given by the Representatives of the election to purchase
such Optional Securities, or such other time and date as the
Representatives and the Company may agree upon in writing,
provided that the Second Time of Delivery (as defined
below), if any, shall be within the 13-day period commencing on and
including the First Time of Delivery. The time and date for
delivery of the Firm Securities is herein called the “First
Time of Delivery”, the time and date for delivery of the
Optional Securities, if not the First Time of Delivery, is herein
called the “Second Time of Delivery”, and each such
time and date for delivery is herein called a “Time of
Delivery”.
(b) The documents to be delivered at
the Time of Delivery by or on behalf of the parties hereto pursuant
to Section 8 hereof, including the cross-receipt for the
Securities and any additional documents requested by the
Representatives pursuant to Section 8(l) hereof, will be
delivered at such time and date at the Closing Location, and the
Securities will be delivered at DTC or its designated custodian,
all at the Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For
the purposes of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5. The Company and each of the
Guarantors further jointly and severally agrees with each of the
Initial Purchasers:
(a) To prepare the Preliminary
Offering Circular, the Pricing Circular and the Offering Circular
in a form reasonably acceptable to you; to make no amendment or any
supplement to any of the foregoing which shall be reasonably
disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b) Promptly from time to time to
reasonably cooperate with you to qualify the Securities for
offering and sale under the securities laws of such jurisdictions
as you may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection
therewith, none of the Company and the Guarantors shall be required
(i) to qualify as a foreign corporation or other entity or as
a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify, (ii) file a general consent
to service of process in any jurisdiction, (iii) subject
itself to taxation in any such jurisdiction if it is not otherwise
so subject or (iv) make any change to its Charter or By-laws
or similar organizational documents;
11
(c) To furnish the Initial
Purchasers with copies of the Preliminary Offering Circular, the
Pricing Circular and the Offering Circular and each amendment or
supplement thereto and additional written and electronic copies
thereof in such quantities as you may from time to time reasonably
request, and if, at any time prior to the expiration of six months
after the date of the Offering Circular, any event shall have
occurred as a result of which the Offering Circular as then amended
or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Offering Circular is delivered, not
misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the
Offering Circular, to notify you and upon your request to prepare
and furnish without charge to each Initial Purchaser and to any
dealer in securities as many written and electronic copies as you
may from time to time reasonably request of an amended Offering
Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such
compliance;
(d) During the period beginning from
the date hereof and continuing until the date 90 days after the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Securities or the
Stock, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without
prior written consent of the Representatives;
(e) Not to be or become, at any time
prior to the expiration of two years after the last Time of
Delivery, an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company
that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company is
not subject to Section 13 or 15(d) of the Exchange Act and the
Securities are “restricted securities” within the
meaning of Rule 144(a)(3) under the Act, for the benefit of holders
from time to time of Securities, to furnish at its expense, upon
request, to holders of Securities and prospective purchasers of
securities information (the “Additional Issuer
Information”) satisfying the requirements of subsection
(d)(4)(i) of Rule 144A under the Act;
(g) During the period of two years
after the Time of Delivery, the Company will not, and will not
permit any of its “affiliates” (as defined in Rule 144
under the Act) to, resell any of the Securities which constitute
“restricted securities” under Rule 144 that have been
reacquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction
registered under the Act;
(h) To use the net proceeds received
by it from the sale of the Securities pursuant to this Agreement in
the manner specified in the Pricing Circular under the caption
“Use of Proceeds”;
12
(i) To reserve and keep available at
all times, free of preemptive rights, shares of Stock (which shares
shall be on the same terms as the Company’s authorized and
issued common stock) for the purpose of enabling the Company to
satisfy any obligations to issue shares of its Stock upon
conversion of the Notes;
(j) To use its commercially
reasonable efforts to list, subject to notice of issuance, the
shares of Stock issuable upon conversion of the Notes on the New
York Stock Exchange;
6. (a) The Company and each
Guarantor jointly and severally represents and agrees that, without
the prior consent of Goldman, Sachs & Co., it has not made
and will not make any offer relating to the Securities that, if the
offering of the Securities contemplated by this Agreement were
conducted as a public offering pursuant to a registration statement
filed under the Act with the Commission, would constitute an
“issuer free writing prospectus,” as defined in Rule
433 under the Act (any such offer is hereinafter referred to as a
“Company Supplemental Disclosure Document”);
(b) each Initial Purchaser
represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets
relating to the Securities containing customary information and
conveyed to purchasers of securities, it has not made and will not
make any offer relating to the Securities that, if the offering of
the Securities contemplated by this Agreement were conducted as a
public offering pursuant to a registration statement filed under
the Act with the Commission, would constitute a “free writing
prospectus,” as defined in Rule 405 under the Act (any such
offer (other than any such term sheets), is hereinafter referred to
as an “Initial Purchaser Supplemental Disclosure
Document”); and
(c) any Company Supplemental
Disclosure Document or Initial Purchaser Supplemental Disclosure
Document the use of which has been consented to by the Company and
the Representatives is listed on Schedule II(b) hereto;
7. The Company covenants and agrees
with the several Initial Purchasers that the Company will pay or
cause to be paid the following: (i) the fees, disbursements
and expenses of the Company’s counsel and accountants in
connection with the issue of the Securities and the shares of Stock
issuable upon conversion of the Securities and all other expenses
in connection with the preparation, printing, reproduction and
filing of the Preliminary Offering Circular, the materials
contained in the Pricing Disclosure Package and the Offering
Circular and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Initial Purchasers and
dealers; (ii) the cost of printing or producing any Agreement
Among Purchasers, this Agreement, the Indenture, the Blue Sky and
Legal Investment Memoranda, if any, closing documents (including
any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the
Securities and the shares of Stock issuable upon conversion of the
Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Initial Purchasers in connection
with such qualification and in connection with the Blue Sky and
legal investment surveys (including the related fees and expenses
of counsel for the Initial Purchasers, which fees and expenses of
such counsel shall not exceed $15,000); (iv) any fees charged
by securities rating services for rating the Securities;
(v) the cost of preparing the
13
Securities; (vi) all costs and expenses
incident to preparing the road show presentation; (vii) the
fees and expenses of the Trustee and any agent of the Trustee and
the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities; (viii) any cost
incurred in connection with the listing of the shares of Stock
issuable upon conversion of the Securities; and (ix) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 12 hereof, each Initial Purchaser
will pay all of its own costs and expenses, including the fees of
its counsel, transfer taxes on resale of any of the Securities by
it, and any
