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EXHIBIT 4.3
The Goodyear Tire & Rubber Company
4.00% Convertible Senior Notes due 2034
Purchase Agreement
June 28, 2004
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
The
Goodyear Tire & Rubber Company, an Ohio corporation (the
"Company"),
proposes, subject to the terms and
conditions stated herein, to issue and sell
to the Purchasers named in Schedule I
hereto (the "Purchasers") an aggregate of
$300,000,000 principal amount of the
Convertible Senior Notes, convertible into
fully paid, non-assessable shares of common
stock, no par value, of the Company
("Stock"), specified above (the "Firm
Securities") and, at the election of the
Purchasers, up to an aggregate of
$50,000,000 additional aggregate principal
amount of the Convertible Senior Notes
specified above (the "Optional
Securities") (the Firm Securities and the
Optional Securities which the
Purchasers elect to purchase pursuant to
Section 2 hereof are herein
collectively called the "Securities"). The
Securities will be issued pursuant to
an indenture (the "Indenture") to be dated
as of the date of the First Time of
Delivery (as defined in Section 4 hereof),
between the Company and Wells Fargo
Bank, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined
herein shall have the meanings given to
such terms in the Offering Circular (as
defined below).
1. The
Company represents and warrants to, and agrees with, each of
the
Purchasers that:
(a) A preliminary offering circular, dated June 28, 2004 (the
"Preliminary Offering Circular") and an offering circular, dated
June 28,
2004 (the
"Offering Circular", in each case including the Company's
Annual
Report on
Form 10-K for the fiscal year ended December 31, 2003 and
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2004, which
are
attached to and made a part of the Preliminary Offering Circular
and
the
Offering Circular), have been prepared in connection with the
offering
of the
Securities and shares of the Stock issuable upon conversion
thereof.
Any reference to the Preliminary Offering Circular or the
Offering
Circular shall be deemed to refer to and include the Company's
most
recent Annual Report on Form 10-K and all subsequent 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")
(excluding
information furnished under Item 9 or Item 12 of any current
report on
Form 8-K) on or
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prior to
the date of the Preliminary Offering Circular or the Offering
Circular,
as the case may be, and any reference to the Preliminary
Offering
Circular or the Offering Circular, as the case may be, as
amended
or
supplemented, as of any specified date, shall be deemed to include
any
documents
filed with the Commission pursuant to Section 13(a), 13(c) or
15(d) of
the Exchange Act after the date of the Preliminary Offering
Circular
or the Offering Circular, as the case may be; and all documents
filed
under the Exchange Act and so deemed to be included in the
Preliminary Offering 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
the Commission, conformed or will conform, as the case may be,
in all
material respects to the applicable requirements of the
Exchange
Act and
the applicable rules and regulations of the Commission
thereunder.
The
Preliminary Offering Circular or the Offering Circular and any
amendments
or supplements thereto insofar as such amendments or
supplements are incorporated into the Offering Circular 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, and
the
Company
makes no representation or warranty with respect to, any
statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Purchaser
through
Goldman,
Sachs & Co. expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has
sustained
since the
date of the latest audited financial statements included in the
Offering Circular any loss or
interference with its business that is
material
to the Company and its subsidiaries taken as a whole 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,
except as set forth or contemplated in the Offering Circular;
and,
since the
respective dates as of which information is given in the
Offering
Circular, there has not been any change in the capital stock
(other
than issuances pursuant to equity incentive plans) or increase
in
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 business, properties, financial
position
or results of operations of the Company and its subsidiaries
taken as a
whole, except as set forth or contemplated in the Offering
Circular.
As used in this Agreement, a "subsidiary" of any person means
any
corporation, association, partnership or other business entity
of
which more
than 50% of the total voting power of shares of capital stock
or other
interests (including partnership interests) entitled (without
regard to
the occurrence of any contingency) to vote in the election of
directors,
managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by: (i) such person, (ii) such
person
and one or
more subsidiaries of such person or (iii) one or more
subsidiaries of such person.
(c) 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 (i) such as are described in the
Offering
Circular
or (ii) such as do not materially affect the value of such
property
and do not interfere with the use made and proposed to be made
of
such
property by the Company and its subsidiaries or (iii) such as
could
not
reasonably be expected, individually or in the aggregate, to have
a
material
adverse effect on the business, properties, financial position
or
results of
operations of the
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Company
and its subsidiaries taken as a whole or on the performance by
the
Company of
its obligations under the Securities (a "Material Adverse
Effect");
and any real property and buildings held under lease by the
Company
and its subsidiaries are held by them under valid, subsisting
and
enforceable leases with such exceptions as are not material and do
not
interfere
with the use made and proposed to be made of such property and
buildings
by the Company and its subsidiaries taken as a whole in any
material
respect;
(d) The Company and its subsidiaries own, license or otherwise
possess
adequate rights to use all material patents, patent
applications,
trademarks, service marks, trade names, trademark registrations,
service
mark
registrations, copyrights, licenses and know-how (including
trade
secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct
of their
respective businesses, except where the failure to own, license
or
otherwise possess such rights would not reasonably be expected to
have
a Material
Adverse Effect; and the conduct of their respective businesses
will not
conflict in any respect with any such rights of others, and the
Company
and, to the best of the Company's knowledge, its subsidiaries,
have not
received written notice of any claim of infringement of or
conflict
with any such rights of others, except such conflicts or
infringements that, if adversely determined against the Company or
any of
its
subsidiaries, would not reasonably be expected to have a
Material
Adverse
Effect.
(e) The financial statements and the related notes thereto
included
in the
Offering Circular present fairly in all material respects the
consolidated financial position of the Company and its
consolidated
subsidiaries as of the dates indicated and the results of their
operations
and the
changes in their cash flows for the periods specified, in each
case, on a
consolidated basis; such financial statements have been
prepared
in conformity with United States generally accepted accounting
principles
applied on a consistent basis throughout the periods covered
thereby;
and the other financial information included or incorporated by
reference
in the Offering Circular has been derived from the accounting
records of
the Company and its subsidiaries and presents fairly in all
material
respects the information shown thereby.
(f) Since the date of the latest audited financial statements of
the
Company
included in the Offering Circular, neither the Company nor any
of
its
subsidiaries has entered into any transaction or agreement that
is
material
to the Company and its subsidiaries taken as a whole or
incurred
any
liability or obligation, direct or contingent, that is material to
the
Company
and its subsidiaries taken as a whole, other than as set forth
in
the
Offering Circular.
(g) The Company has been duly incorporated and is validly
existing
as a
corporation in good standing under the laws of the State of
Ohio,
with all
requisite power and authority (corporate and other) necessary
to
own its
properties and conduct its business as described in the
Offering
Circular,
and has been duly qualified as a foreign corporation 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
liability
or disability that is material to the Company and its
subsidiaries taken as a whole by reason of the failure to be so
qualified
or in good
standing in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in
the
Offering
Circular, and all of the issued shares of capital stock of the
Company
have been duly
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and
validly authorized and issued and are fully paid and
non-assessable;
the shares
of Stock initially issuable upon conversion of the Securities
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 and will conform in all material respects to
the
description of the Stock contained in the Offering Circular; and
all
of the
issued shares of capital stock or other equity interests of
each
significant subsidiary (for purposes of this Section, as defined in
Rule
1.02 of
Regulation S-X under the Exchange Act) of the Company have been
duly and
validly authorized and issued, are fully paid and
non-assessable
and
(except for directors' qualifying shares and except as otherwise
set
forth in
the Offering Circular) are owned directly or indirectly by the
Company,
free and clear of any lien, charge, encumbrance, security
interest,
restriction on voting or transfer or any other claim of any
third
party other than those which are "Permitted Liens" as defined in
the
Indenture,
dated as of March 12, 2004, between the Company and Wells Fargo
Bank,
N.A., as trustee, with respect to the Company's 11% Senior
Secured
Notes due
2011 and Senior Secured Floating Rate Notes due 2011. Except as
described
in the Offering Circular, there are no outstanding
subscriptions, rights, warrants, calls or options to acquire,
or
instruments convertible into or exchangeable for, or agreements
or
understandings with respect to the sale or issuance of, any shares
of
capital
stock of or other equity or other ownership interest in the
Company or
any of its significant subsidiaries;
(i) The Company has full right, power and authority to execute
and
deliver
this Agreement, the Securities, the Indenture and the
Registration
Rights
Agreement dated the date of the First Time of Delivery, between
the
Company
and the Purchasers therein (the "Registration Rights Agreement"
and
together with this Agreement, the Securities and the Indenture,
the
"Transaction Documents") and to perform their respective
obligations
hereunder
and thereunder; and all action required to be taken for the due
and proper
authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(j) The Securities have been duly authorized and, when issued
and
delivered
and paid for pursuant to this Agreement, will have been duly
executed,
authenticated, issued and delivered and will constitute valid
and
legally binding obligations of the Company enforceable in
accordance
with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general
equity
principles regardless of whether considered in a proceeding in
equity or
at law (collectively, the "Enforceability Exceptions"), and
entitled
to the benefits provided by the Indenture under which they are
to
be issued
to you; the Indenture has been duly authorized and, when
executed
and delivered by the Company and the Trustee, the Indenture
will
constitute
a valid and legally binding instrument, enforceable in
accordance
with its terms, subject to the Enforceability Exceptions; and
the
Securities and the Indenture will conform to the descriptions
thereof
in the
Offering Circular and will be in substantially the form
previously
delivered
to you;
(k) This Agreement has been duly authorized, executed and
delivered
by the
Company; and 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, will constitute
a valid
and legally binding agreement of the
4
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Company
enforceable against the Company in accordance with its terms,
subject to
the Enforceability Exceptions, and except that rights to
indemnity
and contribution thereunder may be limited by applicable law
and
public
policy. There are no other persons with registration rights or
similar
rights to have any securities of the Company ((i) other than
the
Securities
and (ii) the Company's 11% Senior Secured Notes due 2011 and
Senior
Secured Floating Rate Notes due 2011 (collectively, the "Senior
Secured
Notes")) registered under a registration statement filed
pursuant
to Rule
415 under the Act.
(l) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the
sale of
the
Securities as described in the Offering Circular) 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;
(m) Prior to the date hereof, neither the Company nor any of
its
affiliates
(as defined in Rule 144 under the Act) has taken any action
which is
designed to or which has constituted or which might have been
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;
(n) The execution, delivery and performance by the Company of
each
of the
Transaction Documents, the issuance and sale of the Securities
and
the
compliance by the Company with all of the provisions of the
Transaction Documents, and the consummation of the transactions
herein and
therein
contemplated will not (i) conflict with or 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 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, (ii) result in any violation of the
provisions of
the
Certificate of Incorporation or By-laws of the Company or (iii)
result
in any
violation of any law or statute or any judgment, order, rule or
regulation
of any court or governmental agency or body having jurisdiction
over the
Company or any of its subsidiaries or any of their properties
or
assets,
except, in the case of clauses (i) and (iii) above, for any
such
conflict,
breach or violation that would not, individually or in the
aggregate,
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 of the
transactions
contemplated by the Transaction Documents, except for (i) such
consents,
approvals,
authorizations, registrations or qualifications as may be
required
under state securities or Blue Sky laws in connection with the
purchase
and resale of the Securities by the Purchasers and (ii) the
filing of
a registration statement pursuant to Rule 415 under the Act by
the
Company with the Commission pursuant to the Registration Rights
Agreement;
(o) Neither the Company nor any of its subsidiaries is (i) in
violation
of its Certificate of Incorporation or By-laws or (ii) in
default in
the performance or observance of any obligation, covenant or
condition
contained in any 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, except, in the
case
of clause
(ii), for any default that would not, individually or in the
aggregate,
have a Material Adverse Effect;
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(p) The statements set forth in the Offering Circular under the
caption
"Description of the Notes" and "Description of Capital Stock",
insofar as
they purport to constitute a summary of the terms of the
Securities
and the Stock, and under the caption "Certain United States
Federal
Income Tax Considerations", insofar as they purport to describe
the
provisions of the laws and documents referred to therein, are
accurate,
complete and fair in all material respects;
(q) Other than as set forth in the Offering Circular, there are
no
legal or
governmental proceedings pending to which the Company or any of
its
subsidiaries is a party or to which any property of the Company or
any
of its
subsidiaries is the subject, which would be required to be
disclosed
in the Company's Annual Report on Form 10-K if such report were
filed on
the date hereof; and, to the best of the Company's knowledge,
no
such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(r) 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 Securities Act of 1933, as amended (the
"Act")) as
securities which are 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;
(s) The Company is subject to Section 13 or 15(d) of the
Exchange
Act;
(t) The Company is not, and after giving effect to the offering
and
sale of
the Securities, 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");
(u) Neither the Company, nor any person acting on its or 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;
(v) Within the preceding six months, neither the Company nor
any
other
person acting on behalf of the Company has offered or sold to
any
person any
Securities, or any securities of the same or a similar class as
the
Securities, other than Securities offered or sold to the
Purchasers
hereunder
or the issuance of the Company's Senior Secured Notes. The
Company
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
to the date on which the distribution of the Securities has
been
completed (as notified to the Company by the Purchasers), 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; and
(w) PricewaterhouseCoopers LLP, who have certified certain
consolidated financial statements of the Company and its
consolidated
subsidiaries, are independent public accountants as required by the
Act
and the
rules and regulations of the Commission thereunder.
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(x) The Company and its subsidiaries have paid all federal,
state,
local and
foreign taxes (except for such taxes that are not yet
delinquent
or that
are being contested in good faith and by proper proceedings)
and
filed all
tax returns required to be paid or filed through the date
hereof,
except in each case where the failure to pay or file would not
reasonably
be expected to have a Material Adverse Effect; and except as
otherwise
disclosed in the Offering Circular or as would not reasonably
be
expected to have a
Material Adverse Effect, there is no tax deficiency
that has
been, or could reasonably be expected to be, asserted against
the
Company or
any of its subsidiaries or any of their respective properties
or
assets.
(y) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made
all
declarations and filings with, the appropriate federal, state,
local
or foreign
governmental or regulatory authorities that are necessary for
the
ownership or lease of their respective properties or the conduct
of
their
respective businesses as described in the Offering Circular,
except
where the
failure to possess or make the same would not, individually or
in the
aggregate, have a Material Adverse Effect; and except as
described
in the
Offering Circular or as would not reasonably be expected to have
a
Material
Adverse Effect, neither the Company nor any of its subsidiaries
has
received written notice of any revocation or modification of any
such
license,
certificate, permit or authorization or has any reason to
believe
that any
such license, certificate, permit or authorization will not be
renewed in
the ordinary course.
(z) Except as described in the Offering Circular, no labor
disturbance by or dispute with employees of the Company or any of
its
subsidiaries exists or, to the best knowledge of the Company,
is
contemplated or threatened, in
each case that would be reasonably expected
to have a
Material Adverse Effect.
(aa) The Company and its subsidiaries (i) are in compliance with
any
and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human
health and
safety, the environment or hazardous or toxic substances or
wastes,
pollutants or contaminants (collectively, "Environmental
Laws");
(ii) have
received and are in compliance with all permits, licenses or
other
approvals required of them under applicable Environmental Laws
to
conduct
their respective businesses; and (iii) have not received notice
of
any actual
or potential liability for the investigation or remediation of
any
disposal or release of hazardous or toxic substances or wastes,
pollutants
or contaminants, except in any such case for any such failure
to comply
with, or failure to receive required permits, licenses or
approvals,
or liability, as would not, individually or in the aggregate,
have a
Material Adverse Effect.
(bb) Except as would not reasonably be expected to have a
Material
Adverse
Effect, 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 is in compliance in all material respects
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
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Section
302 of ERISA, except as set forth in the Preliminary Offering
Circular
or the Offering Circular, 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, and no
"accumulated funding deficiency" as defined in Section 412 of the
Code has
been
incurred, whether or not waived.
(cc) Except as would not reasonably be expected to have a
Material
Adverse
Effect, the Company and its subsidiaries maintain systems of
internal
accounting controls sufficient to provide reasonable assurance
that (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. The
foregoing
is subject
to the disclosures set forth in Note 2 to the Notes to the
Financial
Statements and Item 9A, in each case, of the Company's Annual
Report on
Form 10-K for the fiscal year ended December 31, 2003, and Item
4 of the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31,
2004.
(dd) Except as would not reasonably be expected to have a
Material
Adverse
Effect, the Company and its subsidiaries have insurance
covering
their
respective properties, operations, personnel and businesses,
including
business interruption insurance, which insurance is in amounts
and
insures against such losses and risks as are customary among
companies
of
established reputation engaged in the same or similar businesses
and
operating
in the same or similar locations; and neither the Company nor,
to the
best of the Company's knowledge, any of its subsidiaries, has
(i)
received
written notice from any insurer or agent of such insurer that
capital
improvements or other expenditures are required or necessary to
be
made in
order to continue such insurance or (ii) any reason to believe
that it
will not be able to renew its existing insurance coverage as
and
when such
coverage expires or to obtain similar coverage at reasonable
cost from
similar insurers as may be necessary to continue its business.
(ee) Except as would not reasonably be expected to have a
Material
Adverse Effect, neither the
Company nor any of its subsidiaries nor, to
the best
knowledge of the Company, 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.
(ff) On
the First Time of Delivery, the Company (after giving effect
to the
issuance of the Securities and the other transactions related
thereto as
described in the Offering Circular) will be Solvent. As used in
this
paragraph, the term "Solvent" means, with respect to a
particular
date, that
on such da
