Exhibit 10.6
$60,000,000
EXIDE TECHNOLOGIES
Floating Rate Convertible Senior
Subordinated Notes due 2013
PURCHASE
AGREEMENT
March 15, 2005
Deutsche Bank Securities Inc.
Credit Suisse First Boston LLC
c/o Deutsche Bank Securities Inc.
60 Wall
Street
New York, NY
10005
Ladies and Gentlemen:
Exide Technologies, a Delaware
corporation (the “ Company ”), hereby confirms
its agreement with you (the “ Initial Purchasers
”), as set forth below.
Subject to the terms and conditions
contained herein the Company proposes to issue and sell to the
Initial Purchasers $60,000,000 aggregate principal amount of its
Floating Rate Convertible Senior Subordinated Notes due 2013 (the
“ Firm Securities ”). The Company also proposes
to issue and sell to the Initial Purchasers at Deutsche Bank
Securities Inc.’s option an additional $9,000,000 aggregate
principal amount of its Floating Rate Convertible Senior
Subordinated Notes due 2013 (the “ Option Securities
” and together with the Firm Securities, the “
Securities ”) as set forth below.
The Securities are convertible into
shares of common stock, par value $0.01 per share, of the Company
(the “ Common Stock ”). The shares of Common
Stock into which the Securities may be convertible are referred to
herein as the “ Underlying Securities .” The
Securities are to be issued pursuant to the terms of an Indenture
dated as of March 18, 2005, between the Company and SunTrust Bank,
as Trustee (the “ Trustee ”).
The sale of the Securities and the
Underlying Securities will be made without registration under the
Securities Act of 1933, as amended (the “ Securities
Act ”), in reliance on exemptions from the registration
requirements of the Securities Act. As the Initial Purchasers, you
have advised the Company that you will offer and sell the
Securities purchased by you hereunder (the “ Offering
”) in accordance with Section 4 hereof as soon as you deem
advisable.
In connection with the Offering, the
Company has prepared a final offering memorandum, dated March 15,
2005 (the “ Final Memorandum ”). The Final
Memorandum sets forth certain information regarding the Company,
the Securities and the Underlying Securities.
The Company hereby confirms that it has
authorized the use of the Final Memorandum, and any amendment or
supplement thereto, in connection with the Offering by the Initial
Purchasers. Unless stated to the contrary, all references herein to
the Final Memorandum are to the Final Memorandum at the date
thereof and are not meant to include any amendment or supplement,
or any information incorporated by reference therein subsequent to
the date thereof and any references herein to the terms “
amend ,” “ amendment ” or “
supplement ” with respect to the Final Memorandum
shall be deemed to refer to and include any information filed under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), subsequent to the date of the Final
Memorandum which is incorporated by reference therein. The term
“ Memorandum ” refers to the Final
Memorandum.
Concurrently with the Offering, the
Company is also separately offering $290,000,000 in aggregate
principal amount of 10-1/2% Senior Secured Notes due 2013 (the
“ Senior Notes ”). The proceeds of the Senior
Notes offering along with the proceeds from the sale of the
Securities will be used as described in the Final Memorandum under
the heading “Use of Proceeds.”
In connection with the Offering, the
Company also proposes to enter into a Registration Rights
Agreement, to be dated as of the Closing Date (as defined in
Section 3(a) below), between the Company and the Initial Purchasers
(the “ Registration Rights Agreement
”).
In consideration of the mutual
agreements contained herein and of the interests of the parties in
the transactions contemplated hereby, the parties hereto agree as
follows:
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2.
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY .
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The Company represents and warrants
to the Initial Purchasers as follows:
(a) Neither the Final Memorandum nor
any amendment or supplement thereto as of the date thereof and at
all times subsequent thereto up to the Closing Date (as defined in
Section 3 below) contained or contains any untrue statement of a
material fact or omitted or omits 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
Purchasers furnished to the Company in writing by or on behalf of
the Initial Purchasers expressly for use in the Final Memorandum or
any amendment or supplement thereto.
(b) As of the Closing Date, the
Company’s amended and restated certificate of incorporation
authorized the issuance of 62,500,000 shares of capital stock,
including 61,500,000 shares of common stock, par value $0.01 per
share, and 1,000,000 shares of preferred stock, par value $0.01 per
share; the number of outstanding shares of the Company’s
common stock is set forth in the Final Memorandum in the section
“Principal Stockholders” as of the date indicated; the
information set forth under the caption
“Capitalization” in the Final Memorandum is true and
correct in all material respects; all of the subsidiaries of the
Company are listed in Schedule II attached hereto (each,
a
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“ Subsidiary ” and
collectively, the “ Subsidiaries ”); except as
set forth in the Final Memorandum, all of the outstanding shares of
capital stock or membership interest, as applicable, 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; except as set forth in the Final Memorandum, all of
the outstanding shares of capital stock or membership interest, as
applicable, 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 (1)
the Credit Agreement dated May 5, 2004, among the Company, Deutsche
Bank AG New York Branch, as administrative agent, and the other
parties thereto, as amended (the “ Credit Agreement
”), (2) liens, encumbrances and claims under the Indenture
governing the Senior Notes, (3) the Securities Act and (4) the
securities or “Blue Sky” laws of certain jurisdictions)
or voting; except as set forth in the Final Memorandum and except
for pursuant to the Company’s equity incentive plan or in
connection with the Joint Plan of Reorganization confirmed as of
May 5, 2004, 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 or as disclosed in the Final Memorandum or
Schedule II hereto, 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 otherwise organized, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization and has all requisite
corporate or organizational power and authority to own or lease its
properties and conduct its business as now conducted and as
described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign
corporation or entity in good standing in all other jurisdictions
where the ownership or leasing of its 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,
reasonably be expected to have a material adverse effect on the
general affairs, management, business, financial condition 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 Securities. The Securities, when
issued, will be in the form contemplated by the Indenture. The
Securities 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,
when delivered to and paid for by the Initial Purchasers 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
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equity and the discretion of the court before
which any proceeding therefor may be brought.
(e) The shares of Common Stock to be
issued upon conversion of the Securities have been duly authorized
and reserved and, when issued upon conversion of the Securities,
will be validly issued, fully paid and nonassessable; and no
preemptive rights of stockholders exist with respect to any of the
Common Stock to be issued upon conversion of the
Securities.
(f) All of the shares of Common
Stock conform in all material respects to the description thereof
contained in the Final Memorandum; the form of certificate for the
shares of Common Stock conforms in all material respects to the
requirements of the General Corporation Law of the State of
Delaware.
(g) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Indenture. The Indenture meets in all
material respects the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the “ TIA
”). The Indenture 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 Trustee), will
constitute 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.
(h) 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 Purchasers), 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.
(i) All of the Underlying Securities
issuable upon conversion of the Securities have been duly
authorized. The Company has submitted a notification for listing
the Underlying Securities with NASDAQ.
(j) 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
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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.
(k) 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 Securities to the Initial Purchasers or the consummation by
the Company of the other transactions contemplated hereby, except
such as have been obtained, such as may be required under state
securities or “Blue Sky” laws in connection with the
purchase and resale of the Securities by the Initial Purchasers and
the consent to listing of the Underlying Securities on NASDAQ. None
of the Company or the Subsidiaries is (i) in violation of its
certificate of incorporation, bylaws or limited liability company
agreement (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 (including, without limitation, the Credit
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.
(l) The execution, delivery and
performance by the Company of this Agreement, the Indenture and the
Registration Rights Agreement and the consummation by the Company
of the transactions contemplated hereby and thereby (including,
without limitation, the issuance and sale of the Securities to the
Initial Purchasers) 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 any of (i) 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, bylaws or limited liability company agreement (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
Purchasers 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 or violation that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(m) The audited consolidated
financial statements of the Company and the Subsidiaries included
in the Final Memorandum present fairly in all material respects the
financial position, results of operations and cash flows of the
Company and the
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Subsidiaries at the dates and for the periods to
which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. The summary and selected
financial and statistical data in the Final 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 public
accounting firm within the meaning of the Securities Act and the
rules and regulations promulgated thereunder.
(n) The pro forma financial
information included in the Final Memorandum (i) complies as to
form in all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), (ii)
has been prepared in accordance with the Commission’s rules
and guidelines with respect to pro forma financial information and
(iii) has been properly computed on the bases described therein;
the assumptions used in the preparation of the pro forma financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(o) Except as set forth in the Final
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 Securities to be sold hereunder, the issuance of the Underlying
Securities issuable upon a conversion of the Securities or the
consummation of the other transactions described in the Final
Memorandum.
(p) Each of the Company and the
Subsidiaries possesses all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has
made all necessary declarations and filings with, all federal,
state, foreign, 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 or proposed to be conducted as set
forth in the Final 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 material impairment of the rights of the
holder of any such Permit; and none of the Company or the
Subsidiaries has received any written notice of any proceeding
relating to revocation or modification of any such Permit, except
as described in the Final Memorandum and except where
such
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revocation or modification would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(q) Since the date of the most
recent financial statements appearing in the Final Memorandum,
except as described therein, (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 material to
the general affairs, management, business, condition (financial or
otherwise), prospects 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 or
membership interest, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock or
membership interest (other than with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on,
capital stock owned by the Company) and (iii) there shall not have
been any material change in the capital stock, membership interest
or long-term indebtedness of the Company or the
Subsidiaries.
(r) Each of the Company and the
Subsidiaries has filed all necessary federal, state and foreign
income and franchise tax returns that are required to be filed,
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 taxes shown as due
thereon to the extent such taxes become due and payable; 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 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.
(s) The statistical and
market-related data included in the Final Memorandum are based on
or derived from sources that the Company believes to be reliable
and accurate.
(t) 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, the sale of the
Securities or the issuance of the Underlying Securities 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.
(u) Each of the Company and the
Subsidiaries has good and marketable title to all real property and
good title to all personal property described in the Final
Memorandum as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the
Final Memorandum as being leased by it free and clear of all liens,
charges, encumbrances or restrictions, except as described in the
Final Memorandum 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,
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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,
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 or proposed to
be operated by them as described in the Final Memorandum except
those that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect, and none of the
Company or the Subsidiaries has received any written notice of
infringement of or conflict with (or knows of any such infringement
of or conflict with) asserted 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.
(v) There are no legal or
governmental proceedings involving or affecting the Company or any
Subsidiary or any of their respective properties or assets that
would be required to be described in a prospectus pursuant to the
Securities Act that are not described in the Final Memorandum, nor
are there any material contracts or other documents that would be
required to be described in a prospectus pursuant to the Securities
Act that are not described in the Final Memorandum.
(w) Except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and except as described in or contemplated
by the Final Memorandum, (A) each of the Company and the
Subsidiaries is in compliance with and not subject to liability
under applicable Environmental Law (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) 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 written notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“ CERCLA ”), or any comparable state law, (F)
no property or facility of the Company or any of the Subsidiaries
is (i) listed or proposed for listing on the National Priorities
List under CERCLA or is (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, (G)
neither the Company nor any of its Subsidiaries is conducting or
financing an investigation, or response, corrective or other action
pursuant to Environmental Law at any site of facility,
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nor is any of them subject to or party to any
order, judgment, decree, contract or agreement which obligates it
to conduct or finance any such action nor has any of them assumed
by contract or agreement any obligation or liability under
Environmental Law, and (H) there are no past or present events,
activities, operations, occurrences or conditions which could
reasonably be expected to prevent or interfere with compliance by
the Company of any of its Subsidiaries with, or result in liability
of any of them under, Environmental Law (including, without
limitation, any capital or operating expenditures required for
cleanup, closure or compliance with the Environmental Law, any
constraints on operating activities and any potential liability to
third parties).
For purposes of this Agreement,
“Environmental Law” means the common law and all
applicable foreign, federal, provincial, state and local laws or
regulations, codes, ordinances, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder,
relating to pollution or protection of public or employee health
and safety, the environment or natural resource damages including,
without limitation, those relating to (i) emissions, discharges,
releases or threatened releases of Hazardous Material in or into
the environment (including, without limitation, ambient air,
surface water, groundwater, drinking water, land surface or
subsurface strata, and natural resources such as wetlands, flora
and fauna) or exposure thereto, (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal,
transport, handling or recycling of Hazardous Material, (iii)
zoning, facility siting, financial assurance, environmental impact
assessment or review, reclamation or land use and (iv) underground
or aboveground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom. “
Hazardous Material ” means any substance, material,
pollutant, contaminant, chemical, constituent or waste, including
without limitation, petroleum and petroleum products, subject to
regulation under or which could give rise to liability under
Environmental Law.
(x) Except as set forth in the Final
Memorandum, there is no strike, labor dispute, 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.
(y) Each of the Company and the
Subsidiaries carries insurance in such amounts and covering such
risks as is reasonable for the conduct of its business and the
value of its properties.
(z) 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 ”), to
which the Company or any of the Subsidiaries makes or ever has made
a contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant, except as described
in the Final Memorandum and except where such liability would not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect. With respect to such plans, the Company
and each Subsidiary is in compliance in all material respects with
all applicable provisions of ERISA.
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(aa) Each of the Company and the
Subsidiaries (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls that provide reasonable
assurance that (A) transactions are executed in accordance with
management’s authorization, (B) transactions are 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 authorization
and (D) the reported accountability for its assets is compared with
existing assets at reasonable intervals.
(bb) None of the Company or the
Subsidiaries will be 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.
(cc) The Securities, the Underlying
Securities, the Indenture and the Registration Rights Agreement
will conform in all material respects to the descriptions thereof
in the Final Memorandum.
(dd) 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.
(ee) 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 the Subsidiaries on a consolidated basis will exceed
the sum of their stated liabilities and identified contingent
liabilities on a consolidated basis; the Company and the
Subsidiaries on a consolidated basis will not be, after giving
effect to the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, (i) left with unreasonably small capital with which to
carry on their business as it is proposed to be conducted, (ii)
unable to pay their debts (contingent or otherwise) as they mature
or (iii) otherwise insolvent.
(ff) None of the Company, the
Subsidiaries or any of their respective Affiliates (as defined in
Rule 501(b) of Regulation D under the Securities 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 Securities Act) that is
or could be integrated with the sale of the Securities in a manner
that would require the registration under the Securities Act of the
Securities or (ii) engaged in any form of general solicitation or
general advertising (as those terms are used in Regulation D under
the Securities Act) in connection with the offering of the
Securities or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act. Assuming the
accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement to register
any of the Notes under the Securities Act or to qualify the
Indenture under the TIA.
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(gg) No securities of the Company or
any Subsidiary are of the same class (within the meaning of Rule
144A under the Securities Act) as the Securities and listed on a
national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(hh) 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 Securities.
(ii) None of the Company, the
Subsidiaries, any of their respective Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers)
has engaged in any directed selling efforts (as that term is
defined in Regulation S under the Securities 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
Purchasers) have complied with the offering restrictions
requirement of Regulation S.
(jj) Neither the Company nor its
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a material violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “ FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in
furtherance
