Exhibit 4.2
$60,000,000
C&D Technologies, Inc.
5.25% Convertible Senior Notes due 2025
PURCHASE AGREEMENT
November 16, 2005
Credit Suisse First Boston LLC
Wachovia Capital Markets, LLC
c/o Credit
Suisse First Boston LLC
Eleven
Madison Avenue
New York,
N.Y. 10010-3629
Dear Sirs:
1. Introductory. C&D Technologies, Inc., a Delaware corporation
(the
"Company"), proposes, subject to the terms and conditions stated
herein, to
issue and sell to the several initial purchasers named in Schedule
A hereto (the
"Purchasers") U.S.$60,000,000 principal amount of its 5.25%
Convertible Senior
Notes due 2025 (the "Firm Securities") which are convertible into
cash or a
combination of cash and shares of common stock, $0.01 par value, of
the Company
(the "Underlying Shares") and, at the election of the Purchasers,
an aggregate
of up to an additional $15,000,000 principal amount ("Optional
Securities") of
its 5.25% Convertible Senior Notes due 2025 (the Firm Securities
and the
Optional Securities which the Purchasers may elect to purchase
pursuant to
Section 3 hereof are herein collectively called the "Offered
Securities") each
to be issued under an indenture to be dated as of November 21, 2005
(the
"Indenture"), between the Company and The Bank of New York, as
Trustee, on a
private placement basis pursuant to an exemption under Section 4(2)
of the
United States Securities Act of 1933, as amended (the "Securities
Act"), and
hereby agrees with the several Purchasers as follows:
The Offered Securities will be convertible into shares of
common
stock, par value $0.01 per share, of the Company (the "Common Stock
") in
accordance with the terms of the Offered Securities and the
Indenture, at the
initial conversion rate specified in Schedule B hereto.
The holders of the Offered Securities will be entitled to the
benefits of a Registration Rights Agreement to be dated as of
November 21, 2005
among the Company and the Purchasers (the "Registration Rights
Agreement"),
pursuant to which the Company agrees to file a registration
statement with the
Securities and Exchange Commission (the "Commission") registering
the resale of
the Offered Securities and the Underlying Shares under the
Securities Act.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers
that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by the
Company. Such
preliminary offering circular (the "Preliminary Offering Circular")
and offering
circular (the "Offering Circular"), as amended or supplemented as
of the date of
this Agreement, together with any other document approved by the
Company for use
in con-
<PAGE>
nection with the contemplated resale of the Offered Securities, are
hereinafter
collectively referred to as the "Offering Document". On the date of
this
Agreement, the Offering Document does not, and as of the Closing
Date will 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. The
preceding sentence
does not apply to statements in or omissions from the Offering
Document based
upon written information furnished to the Company by any Purchaser
through
Credit Suisse First Boston LLC ("CSFB") specifically for use
therein, it being
understood and agreed that the only such information is that
described as such
in Section 7(b) hereof. Except as disclosed in the Offering
Document, the
Company's Annual Report on Form 10-K most recently filed with the
Commission and
all subsequent reports (collectively, the "Exchange Act Reports")
which have
been filed by the Company with the Commission or sent to
stockholders pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act") did not,
as of their respective filing dates, include any untrue statement
of a material
fact or omit to state any material fact necessary to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading. Such documents, when they were filed with the
Commission, conformed
in all material respects to the requirements of the Exchange Act
and the rules
and regulations of the Commission thereunder. For purposes of this
Agreement,
the phrases "disclosed in the Offering Document" or "contained in
the
Preliminary Offering Circular," or words of similar import, shall
refer to the
disclosure contained in the Offering Document as if the information
incorporated
therein by reference from the Exchange Act Reports were set forth
in full
therein.
(b) The Offered Securities have been duly authorized by the
Company
and, when delivered and paid for pursuant to this Agreement and the
Indenture,
will have been duly executed, authenticated, issued and delivered
and will
constitute valid and legally binding obligations of the Company,
entitled to the
benefits provided in the Indenture and enforceable in accordance
with their
terms, except as enforceability may be limited by applicable
bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights
generally or by equitable principles relating to
enforceability.
(c)
The Company has submitted an application for listing the
Underlying Shares with the New York Stock Exchange ("NYSE").
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with power
and authority (corporate and other) to own its properties and
conduct its
business as described in the Offering Document; and the Company is
duly
qualified to do business as a foreign corporation in good standing
in all other
jurisdictions in which its ownership or lease of property or the
conduct of its
business requires such qualification.
(e) Each subsidiary of the Company has been duly incorporated
or
organized and is an existing corporation or other entity in good
standing under
the laws of the jurisdiction of its incorporation or organization,
with power
and authority (corporate and other) to own its properties and
conduct its
business as described in the Offering Document; and each subsidiary
of the
Company is duly qualified to do business as a foreign corporation
or other
entity in good standing in all other jurisdictions in which its
ownership or
lease of property or the conduct of its business requires such
qualification;
all of the issued and outstanding capital stock of each subsidiary
of the
Company has been duly authorized and validly issued and is fully
paid and
nonassessable; and the capital stock of each subsidiary owned by
the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and
defects. The subsidiaries listed in Schedule B to this Agreement
are the only
subsidiaries of the Company.
(f) The Company has a capitalization as set forth in the
Offering
Document under the heading "Capitalization".
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(g) The Indenture has been duly authorized by the Company and,
when
duly executed and delivered in accordance with its terms by each of
the parties
thereto on the First Closing Date, will constitute a valid and
legally binding
agreement of the Company enforceable against the Company in
accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights
generally or by equitable principles relating to enforceability;
and on the
First Closing Date (as defined in Section 3 hereof), the Indenture
will conform
in all material respects to the requirements of the Trust Indenture
Act of 1939,
as amended (the "Trust Indenture Act "), and the rules and
regulations of the
Commission applicable to an indenture that is qualified
thereunder;
(h) When the Offered Securities are delivered and paid for
pursuant
to this Agreement on the Closing Date, such Offered Securities will
be
convertible into shares of Common Stock of the Company in
accordance with the
terms of the Indenture; the Underlying Shares initially issuable
upon conversion
of such Offered Securities have been duly authorized and reserved
for issuance
upon such conversion and, when issued upon such conversion, will be
validly
issued, fully paid and nonassessable; the outstanding Underlying
Shares have
been duly authorized and validly issued, are fully paid and
nonassessable and
conform to the description thereof contained in the Offering
Document; and the
stockholders of the Company have no preemptive rights with respect
to the
Offered Securities or the Underlying Shares.
(i) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that
would give rise to a valid claim against the Company or any
Purchaser for a
brokerage commission, finder's fee or other like payment with
respect to the
offer and sale of the Offered Securities.
(j) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for
the
consummation of the transactions contemplated by this Agreement and
the
Registration Rights Agreement in connection with the issuance and
sale of the
Offered Securities by the Company, except for the filing with the
Commission of
the Shelf Registration Statement (as defined in the Registration
Rights
Agreement) and the order of the Commission declaring the Shelf
Registration
Statement effective.
(k) The execution, delivery and performance of the Indenture,
this
Agreement and the Registration Rights Agreement, and the issuance
and sale of
the Offered Securities and compliance with the terms and provisions
thereof will
not result in a breach or violation of any of the terms and
provisions of, or
constitute a default under (i) any statute, rule, regulation or
order of any
governmental agency or body or any court, domestic or foreign,
having
jurisdiction over the Company or any subsidiary of the Company or
any of their
properties, (ii) any agreement or instrument to which the Company
or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or
to which any of the properties of the Company or any such
subsidiary is subject,
or (iii) the charter or by-laws of the Company or any such
subsidiary, in each
case, that would reasonably be expected, individually or in the
aggregate, to
have a Material Adverse Effect, and the Company has full power and
authority to
authorize, issue and sell the Offered Securities as contemplated by
this
Agreement.
(l) This Agreement has been duly authorized, executed and
delivered
by the Company.
(m) The Registration Rights Agreement has been duly authorized
by
the Company and, when duly executed and delivered in accordance
with its terms
by each of the parties thereto on the First Closing Date, will
constitute a
valid and legally binding agreement of the Company enforceable
against the
Company in accordance with its terms, except as enforceability may
be limited by
applicable
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bankruptcy, insolvency or similar laws affecting the enforcement of
creditors'
rights generally or by equitable principles relating to
enforceability, and
except that rights to indemnity and contribution thereunder may be
limited by
applicable law and public policy.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is (i) in violation of its
charter, by-laws
or similar organizational documents; (ii) in default, and no event
has occurred
that, with notice or lapse of time or both, would constitute such a
default, in
the due performance or observance of any term, covenant or
condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or
instrument to which the Company or any of its subsidiaries is a
party or by
which the Company or any of its subsidiaries is bound or to which
any of the
property or assets of the Company or any of its subsidiaries is
subject; or
(iii) in violation of any law or statute or any judgment, order,
rule or
regulation of any court or arbitrator or governmental or regulatory
authority,
except, in the case of clauses (ii) and (iii) above, for any such
default or
violation that would not, individually or in the aggregate,
reasonably be
expected to have a material adverse effect on the condition
(financial or
other), business, properties or results of operations of the
Company and its
subsidiaries taken as a whole ("Material Adverse Effect").
(o) Except as disclosed in the Offering Document, the Company
and
its subsidiaries have good and marketable title to all real
properties and all
other properties and assets owned by them, in each case free from
liens,
encumbrances and defects that would materially affect the value
thereof or
materially interfere with the use made or to be made thereof by
them; and except
as disclosed in the Offering Document, the Company and its
subsidiaries hold any
leased real or personal property under valid and enforceable leases
with no
exceptions that would materially interfere with the use made or to
be made
thereof by them.
(p) The Company and its subsidiaries possess adequate
certificates,
authorities or permits issued by appropriate governmental agencies
or bodies
necessary to conduct the business now operated by them and have not
received any
notice of proceedings relating to the revocation or modification of
any such
certificate, authority or permit that, if determined adversely to
the Company or
any of its subsidiaries, would individually or in the aggregate
reasonably be
expected to have a Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that would
reasonably be expected to have a Material Adverse Effect.
(r) The Company and its subsidiaries own, possess or can acquire
on
reasonable terms, adequate trademarks, trade names and other rights
to
inventions, know-how, patents, copyrights, confidential information
and other
intellectual property (collectively, "intellectual property
rights") necessary
to conduct the business now operated by them, or presently employed
by them, and
have not received any notice of infringement of or conflict with
asserted rights
of others with respect to any intellectual property rights that, if
determined
adversely to the Company or any of its subsidiaries, would
individually or in
the aggregate reasonably be expected to have a Material Adverse
Effect.
(s) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule,
regulation, decision or order of any governmental agency or body or
any court,
domestic or foreign, relating to the use, disposal or release of
hazardous or
toxic substances or relating to the protection or restoration of
the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental
laws"), owns or operates any real property contaminated with any
substance that
is subject to any environmental laws, is liable for any off-site
disposal or
contamination pursuant to any environmental laws, or is subject to
any claim
relating to any environ-
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<PAGE>
mental laws, which violation, contamination, liability or claim
would
individually or in the aggregate reasonably be expected to have a
Material
Adverse Effect; and the Company is not aware of any pending
investigation which
would reasonably be expected to lead to such a claim.
(t) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the
Company, any of
its subsidiaries or any of their respective properties that, if
determined
adversely to the Company or any of its subsidiaries, would
individually or in
the aggregate reasonably be expected to have a Material Adverse
Effect, or would
materially and adversely affect the ability of the Company to
perform its
obligations under the Indenture, this Agreement or the Registration
Rights
Agreement, or which are otherwise material in the context of the
sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or,
to the Company's knowledge, contemplated; and (i) there are no
current or
pending legal, governmental or regulatory actions, suits or
proceedings that
would be required under the Securities Act to be described in a
prospectus that
are not so described in the Offering Document and (ii) there are no
contracts or
other documents that are required under the Securities Act to be
filed as
exhibits to a registration statement or described in a registration
statement or
a prospectus that are not filed with the Commission or described in
the Offering
Document.
(u) The financial statements included in the Offering Document
present fairly the financial position of the Company and its
consolidated
subsidiaries as of the dates shown and their results of operations
and cash
flows for the periods shown, and such financial statements have
been prepared in
conformity with the generally accepted accounting principles in the
United
States applied on a consistent basis except as may be stated in the
notes
thereto.
(v) Except as disclosed in the Offering Document, since the date
of
the latest audited financial statements included in the Offering
Document, there
has been no material adverse change, nor any development or event
involving a
prospective material adverse change, in the condition (financial or
other),
business, properties or results of operations of the Company and
its
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by
the Offering Document, there has been no dividend or distribution
of any kind
declared, paid or made by the Company on any class of its capital
stock.
(w) The Company is subject to the reporting requirements of
either
Section 13 or Section 15(d) of the Exchange Act and files reports
with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR)
system.
(x) Each employee benefit plan, within the meaning of Section
3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA "),
that is maintained, administered or contributed to by the Company
or any of its
affiliates for employees or former employees of the Company and its
affiliates
has been maintained in all material respects in compliance with its
terms and
the requirements of any applicable statutes, orders, rules and
regulations,
including but not limited to ERISA and the Internal Revenue Code of
1986, as
amended (the "Code"); no prohibited transaction, within the meaning
of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect
to any such
plan excluding transactions effected pursuant to a statutory or
administrative
exemption; and for each such plan that is subject to the funding
rules of
Section 412 of the Code or Section 302 of ERISA, no "accumulated
funding
deficiency" as defined in Section 412 of the Code has been
incurred, whether or
not waived, and the fair market value of the assets of each such
plan (excluding
for these purposes accrued but unpaid contributions) exceeds the
present value
of all benefits accrued under such plan determined using reasonable
actuarial
assumptions.
(y) Each of the Company and its 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
aggregate,
reasonably be expected to have a Material Adverse Effect, and has
paid all
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taxes shown as due thereon; and other than tax deficiencies which
the Company or
any subsidiary, as the case may be, are contesting in good faith
and for which
the Company or such subsidiary, as the case may be, has provided
adequate
reserves, there is no tax deficiency that has been asserted against
the Company
or any of the subsidiaries that would reasonably be expected to
have,
individually or in the aggregate, a Material Adverse Effect.
(z) The Company and its subsidiaries maintain systems of
internal
accounting controls sufficient to provide reasonable assurance that
in all
material respects (i) transactions are executed in accordance with
management's
general or specific authorizations; (ii) transactions are recorded
as necessary
to permit preparation of financial statements in conformity with
generally
accepted accounting principles and to maintain asset
accountability; (iii)
access to assets is permitted only in accordance with management's
general or
specific authorization; and (iv) the recorded accountability for
assets is
compared with the existing assets at reasonable intervals and
appropriate action
is taken with respect to any differences.
(aa) The Company and its subsidiaries have insurance covering
their
respective properties, operations, personnel and businesses, which
insurance is
in amounts and insures against such losses and risks as are
reasonably adequate
for the conduct by the Company and its subsidiaries of their
respective
businesses.
(bb) Neither the Company nor any of its subsidiaries nor, to
the
Company's knowledge, any director, officer, agent, employee or
other person
associated with or acting on behalf of the Company or any of its
subsidiaries
has (i) used any corporate funds for any unlawful contribution,
gift,
entertainment or other unlawful expense relating to political
activity; (ii)
made any direct or indirect unlawful payment to any foreign or
domestic
government official or employee from corporate funds; (iii)
violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or
other unlawful
payment.
(cc) On and immediately after the Closing Date, the Company
(after
giving effect to the issuance of the Offered Securities and the
other
transactions related thereto as described in the Offering Document)
will be
Solvent. As used in this paragraph, the term "Solvent " means, with
respect to a
particular date, that on such date the present fair market value
(or present
fair saleable value) of the assets of the Company is not less than
the total
amount required to pay the liabilities of the Company on its total
existing
debts and liabilities (including contingent liabilities) as they
become absolute
and matured.
(dd) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be
registered under Section 8 of the United States Investment Company
Act of 1940,
as amended (the "Investment Company Act"); and the Company is not
and, after
giving effect to the offering and sale of the Offered Securities
and the
application of the proceeds thereof as described in the Offering
Document, will
not be an "investment company" as defined in the Investment Company
Act.
(ee) No securities of the same class (within the meaning of
Rule
144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any
national securities exchange registered under Section 6 of the
Exchange Act or
quoted in a U.S. automated inter-dealer quotation system; and each
of the
Preliminary Offering Circular and the Offering Circular, as of its
respective
date, contains or will contain all the information that, if
requested by a
prospective purchaser of the Offered Securities, would be required
to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4)
under the
Securities Act.
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(ff) Neither the Company nor any of its affiliates (as defined
in
Rule 501(b) of Regulation D under the Securities Act) has, directly
or through
any agent, sold, offered for sale, solicited offers to buy or
otherwise
negotiated in respect of, any security (as defined in the
Securities Act), that
is or will be integrated with the sale of the Offered Securities in
a manner
that would require registration of the Offered Securities under the
Securities
Act.
(gg) The offer and sale of the Offered Securities by the Company
to
the several Purchasers in the manner contemplated by this Agreement
will be
exempt from the registration requirements of the Securities Act by
reason of
Section 4(2) thereof, Regulation D thereunder and Regulation S; and
it is not
necessary to qualify an indenture in respect of the Offered
Securities under the
Trust Indenture Act.
(hh) Neither the Company, nor any of its affiliates, nor any
person
acting on its or their behalf (i) has, within the six-month period
prior to the
date hereof, offered or sold in the United States or to any U.S.
person (as such
terms are defined in Regulation S under the Securities Act) the
Offered
Securities or any security of the same class or series as the
Offered Securities
or (ii) has offered or will offer or sell the Offered Securities
(A) in the
United States by means of any form of general solicitation or
general
advertising within the meaning of Rule 502(c) under the Securities
Act or (B)
with respect to any securities sold in reliance on Rule 903 of
Regulation S, by
means of any directed selling efforts within the meaning of Rule
902(c) of
Regulation S. The Company has not entered and will not enter into
any
contractual arrangement with respect to the distribution of the
Offered
Securities except for this Agreement and any engagement agreement
with a
Purchaser.
(ii) 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 Offering Document is not based on or derived from
sources that
are reliable and accurate in all material respects.
(jj) No relationship, direct or indirect, exists between or
among
the Company or any of its subsidiaries, on the one hand, and the
directors,
officers, stockholders, customers or suppliers of the Company or
any of its
subsidiaries, on the other, that is required by the Securities Act
to be
described in a prospectus that is not so described in the Offering
Document.
(kk) There is and has been no failure on the part of the Company
or
any of the Company's directors or officers, in their capacities as
such, to
comply in all material respects with any provision of the
Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the
"Sarbanes-Oxley Act"), including Section 402 related to loans and
Sections 302
and 906 related to certifications.
(ll) The proceeds to the Company from the offering of the
Offered
Securities will not be used to purchase or carry any security.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis
of the representations, warranties and agreements herein contained,
but subject
to the terms and conditions herein set forth, the Company agrees to
sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to
purchase
from the Company, at a purchase price of 97.0% of the principal
amount thereof
plus accrued interest from November 21, 2005 to the First Closing
Date (as
hereinafter defined), the respective principal amounts of Firm
Securities set
forth opposite the names of the several Purchasers in Schedule A
hereto.
The Company will deliver against payment of the purchase price
the
Firm Securities in the form of one or more permanent global
securities in
definitive form (the "Firm Global Securities") deposited with the
Trustee as
custodian for The Depository Trust Company ("DTC") and registered
in the
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name of Cede & Co., as nominee for DTC. Interests in any
permanent global
securities will be held only in book-entry form through DTC, except
in the
limited circumstances described in the Offering Document. Payment
for the Firm
Securities shall be made by the Purchasers in Federal (same day)
funds by
official check or checks or wire transfer to an account at a bank
acceptable to
CSFB at the office of Cahill Gordon & Reindel LLP at 9:00 A.M.
(New York time),
on November 21, 2005, or at such other time not later than seven
full business
days thereafter as CSFB and the Company determine, such time being
herein
referred to as the "First Closing Date", against delivery to the
Trustee as
custodian for DTC of the Firm Global Securities representing all of
the Firm
Securities. The Firm Global Securities will be made available for
checking at
the offices of Cahill Gordon & Reindel LLP at least 24 hours
prior to the First
Closing Date.
In addition, upon written notice from CSFB given to the Company
from
time to time not more than 30 days subsequent to the date of this
Agreement, the
Purchasers may purchase all or less than all of the Optional
Securities at the
purchase price of 97.0% of the principal amount of Optional
Securities
(including any accrued interest thereon from November 21, 2005 to
the related
Optional Closing Date (as defined below)). The Company agrees to
sell to the
Purchasers the principal amount of Optional Securities specified in
such notice
and the Purchasers agree, severally and not jointly, to purchase
such Optional
Securities. Such Optional Securities shall be purchased from the
Company for the
account of each Purchaser in the same proportion as the principal
amount of Firm
Securities set forth opposite such Purchaser's name in Schedule A
hereto bears
to the total principal amount of Firm Securities (subject to
adjustment by CSFB
to eliminate fractions). No Optional Securities shall be sold or
delivered
unless the Firm Securities previously have been, or simultaneously
are, sold and
delivered. The right to purchase the Optional Securities or any
portion thereof
may be exercised from time to time and to the extent not previously
exercised
may be surrendered and terminated at any time upon notice by CSFB
to the
Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as the "Optional Closing
Date", which may
be the First Closing Date (the First Closing Date and each Optional
Closing
Date, if any, being sometimes referred to as a "Closing Date"),
shall be
determined by CSFB on behalf of the several Purchasers but shall
not be later
than seven full business days after written notice of election to
purchase
Optional Securities is given. The Company will deliver against
payment of the
purchase price the Optional Securities being purchased on each
Optional Closing
Date in the form of one or more permanent global Securities in
definitive form
(each, an "Optional Global Security") deposited with the Trustee as
custodian
for DTC and registered in the name of Cede & Co., as nominee
for DTC. Payment
for such Optional Securities shall be made by the Purchasers in
Federal (same
day) funds by official check or checks or wire transfer to an
account at a bank
acceptable to CSFB at the office of Cahill Gordon & Reindel
LLP, against
delivery to the Trustee as custodian for DTC of the Optional Global
Securities
representing all of the Optional Securities being purchased on such
Optional
Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company
that it is an "accredited investor" within the meaning of
Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and
may not be
offered or sold within the United States or to, or for the account
or benefit
of, U.S. persons except in accordance with Regulation S or pursuant
to an
exemption from the registration requirements of the Securities Act.
Each
Purchaser severally represents and agrees that it has offered and
sold the
Offered Securities and will offer and sell the Offered Securities
(i) as part of
their distribution at any time and (ii) otherwise until the later
of the
commencement of the
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<PAGE>
offering and the latest Closing Date, only in accordance with Rule
144A ("Rule
144A") or Rule 903 under the Securities Act. Accordingly, neither
such Purchaser
nor its affiliates, nor any persons acting on its or their behalf,
have engaged
or will engage in any directed selling efforts with respect to the
Offered
Securities, and such Purchaser, its affiliates and all persons
acting on its or
their behalf have complied and will comply with the offering
restrictions
requirement of Regulation S. Each Purchaser severally agrees that,
at or prior
to confirmation of sale of the Offered Securities, other than a
sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor,
dealer or person
receiving a selling concession, fee or other remuneration that
purchases the
Offered Securities from it during the restricted period a
confirmation or notice
to substantially the following effect:
"The
Securities covered hereby have not been registered under the
U.S.
Securities
Act of 1933 (the "Securities Act") and may not be offered or
sold
within the United States or to, or for the account or benefit
of,
U.S.
persons (i) as part of their distribution at any time or (ii)
otherwise
until 40 days after the later of the date of the commencement
of
the
offering and the closing date, except in either case in
accordance
with
Regulation S (or Rule 144A if available) under the Securities
Act.
Terms used
above have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them
by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement
with respect to the distribution of the Offered Securities except
for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or
with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities by means
of any form of
general solicitation or general advertising, within the meaning of
Rule 502(c)
under the Securities Act, including, but not limited to (i) any
advertisement,
article, notice or other communication published in any newspaper,
magazine or
similar media or broadcast over television or radio, or (ii) any
seminar or
meeting whose attendees have been invited by any general
solicitation or general
advertising. Each Purchaser severally agrees, with respect to
resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver
either with
the confirmation of such resale or otherwise prior to settlement of
such resale
a notice to the effect that the resale of such Offered Securities
has been made
in reliance upon the exemption from the registration requirements
of the
Securities Act provided by Rule 144A.
(e) Each Purchaser severally acknowledges and agrees that the
Offered Securities and any Underlying Shares issued upon conversion
thereof
shall bear the legend described in the Offering Document for the
period
specified therein.
(f) In relation to each member state (each, a "Member State") of
the
European Economic Area (European Union member states plus Norway,
Iceland and
Liechtenstein) that has implemented Directive 2003/71/EC, including
any relevant
implementing measure in each such Member State (the "Prospectus
Directive" and
each such Member State that has implemented the Prospectus
Directive, a
"Relevant Member State"), each Purchaser severally agrees that with
effect from
and including the date on which the Prospectus Directive is
implemented in that
Relevant Member State (the "Relevant Implementation Date") it has
not made and
will not make an offer of the Offered Securities to the public in
that Relevant
Member State prior to the publication of a prospectus in relation
to the Offered
Securities which has been approved by the competent authority in
that Relevant
Member State or, where appropr
