Exhibit 4.5
$150,000,000
Century Aluminum Company
1.75% Convertible Senior Notes due
August 1, 2024
PURCHASE AGREEMENT
July 30, 2004
CREDIT SUISSE FIRST BOSTON
LLC,
As Representative of the Several Purchasers,
Eleven Madison Avenue,
NewYork, N.Y.
10010-3629
Dear Sirs:
1.
Introductory. Century Aluminum Company, 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 ”) $150,000,000 principal amount of
its 1.75% Convertible Senior Notes due 2024 (the “ Firm
Securities ”) and, at the election of the Purchasers an
aggregate of up to an additional $25,000,000 principal amount
(“ Optional Securities ”) of its 1.75%
Convertible Senior Notes due 2024 (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 ”). The Offered
Securities are to be issued under an indenture to be dated as of
July 9, 2004 (the “ Indenture ”), among the
Company and Wilmington Trust Company, as Trustee, on a private
placement basis pursuant to an exemption under Section 4(2) of
the United States Securities Act of 1933 (the “ Securities
Act ”) and Rule 144A thereunder (“ Rule
144A ”).
The
holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement among the Company and the
Purchasers (the “ Registration Rights Agreement
”), pursuant to which the Company agrees to file a
registration statement (the “ Shelf Registration
Statement ”) with the Securities Exchange Commission (the
“ Commission ”) registering the resale of the
Offered Securities and the Underlying Shares, as hereinafter
defined, 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) An offering circular
relating to the Offered Securities to be offered by the Purchasers
has been prepared by the Company. Such offering circular (the
“ Offering Circular ”), including documents
incorporated by reference therein, and as supplemented as of the
date of this Agreement, is hereinafter collectively referred to as
the “ Offering Document ”. On the date of this
Agreement, the Offering Document does 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
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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, on the date of this
Agreement, 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 shareholders pursuant to the Securities
Exchange Act of 1934 (the “ Exchange Act ”) do
not 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.
(b) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority 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, except to the extent that the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a
whole.
(c) Each subsidiary of the
Company has been duly organized and is validly existing as a
corporation, limited liability company or limited partnership in
good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate, limited
liability company or limited partnership) 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, limited liability company or limited
partnership in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure
to be so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued and outstanding shares of capital stock or
other equity interests of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable or, in the case of any subsidiary that is not a
corporation, all necessary actions under the limited liability
company act or the limited partnership act under which the
subsidiary was organized and the subsidiary’s constituent
documents have been taken for the purchase of such
subsidiary’s equity interests; and the capital stock or other
equity interests of each subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens, encumbrances and
defects except for (i) encumbrances on the Company’s
ability to dispose of the stock of Berkeley Aluminum, Inc. pursuant
to the Amended and Restated Owners’ Agreement dated as of
January 26, 1996, as amended heretofore, governing the use and
ownership of the Mt. Holly facility, (ii) the rights of
Glencore Ltd. and Glencore Acquisition I LLC under that certain
Security Agreement dated April 1, 2003 respecting Hancock
Aluminum LLC’s membership interest in Century Aluminum of
Kentucky LLC, and (iii) liens, encumbrances, equities or
claims under the Indenture dated April 2, 2001 relating to the
Company’s 11 3/4% Senior Secured First Mortgage Notes due
2008 (“ the 2001 Indenture ”).
(d) This Agreement has been
duly authorized, executed and delivered by the Company.
(e) Each of the Indenture and
the Registration Rights Agreement has been duly authorized by the
Company and each of its subsidiaries party thereto, and when
executed and delivered by the Company or such subsidiaries, will be
a valid and binding obligation of each such person, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights
generally, general principles of equity (regardless of
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whether considered in an action at law or in
equity) and limitations on the enforceability of indemnification or
contribution provisions because of considerations of public
policy.
(f) The authorized capital
stock of the Company conforms as to legal matters to the
description there of contained in the Offering Document.
(g) The Offered Securities
have been duly authorized; and when the Offered Securities are
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers pursuant
to this Agreement, such Offered Securities will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles.
(h) The execution and delivery
by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and the
Registration Rights Agreement, and the consummation of the
transactions contemplated hereby and thereby, will not contravene
in any material respect any provision of applicable law or
regulation or the certificate of incorporation or by-laws or other
constituent documents of the Company or any of its subsidiaries or
any agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency
is required to be obtained by the Company or its subsidiaries for
the performance by the Company of its obligations under this
Agreement and the Registration Rights Agreement in connection with
the issuance and sale of the Offered Securities by the Company,
except such as are disclosed in the Offering Document as may be
required to comply with the Company’s obligations under the
Registration Rights Agreement under federal and state securities
laws or as may be required to comply with the securities or Blue
Sky laws of the various states in connection with the offer and
sale ofthe Offered Securities.
(i) When the Offered
Securities are delivered and paid for pursuant to this Agreement on
each Closing Date, such Offered Securities will be convertible into
cash up to the aggregate principal amount of Offered Securities to
be converted and, at the election of the Company, cash, shares of
common stock, par value $0.01 per share of the Company (“
Common Stock ”) or a combination thereof, with respect
to the remainder, if any, of the Company’s conversion
obligation in excess of the principal amount of Offered Securities
to be converted, in accordance with the terms of the Indenture; the
shares initially issuable upon conversion of such Offered
Securities (the “ Underlying Shares ”) have been
duly authorized and reserved for issuance upon such conversion and,
when issued and delivered upon such conversion in accordance with
the terms of the Indenture, will be validly issued, fully paid and
nonassessable; the outstanding Common Stock has been duly
authorized and validly issued, is 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.
(j) The Company is subject to
the reporting requirements of either Section 13 or Section
15(d) of the Securities Exchange Act of 1934 and files reports with
the Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(k) No securities of the same
class (within the meaning of Rule 144A(d)(3)(i)) 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.
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(1) Assuming compliance by the
Purchasers with their representations and warranties set forth in
Section 4, it is not necessary in connection with the offer,
sale and delivery of the Offered Securities to the Purchasers and
the offer and sale of the Offered Securities by the Purchasers in
the manner contemplated by this Agreement to register the Offered
Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended.
(m) Neither the Company, nor
any of its affiliates, nor any person acting on its or their behalf
(other than the Purchasers, as to whom the Company makes no
representation) (i) has offered or sold the Offered Securities
or any security of the same class or series as the Offered
Securities which is or will be integrated with the sale of the
Offered Securities in a manner that would require the registration
under the Securities Act of the Offered Securities or (ii) has
offered or will offer or sell the Offered Securities in the United
Statesby means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities
Act. 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 until the earlier of
(i) the Option Closing Date on which the Purchasers’
option to purchase Optional Securities is fully exercised or (ii)
the expiration of the 45 day period subsequent to the date of this
Agreement during which the Purchasers may exercise their option to
purchase Optional Securities.
(n) There has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Offering
Document (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(o) 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 have a material adverse
effect on the Company and its subsidiaries, taken as a whole, 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; and, to the Company’s
knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(p) 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 United States Investment Company
Act of 1940 (the “ Investment Company Act
”).
(q) The Company and its
subsidiaries (1) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (2) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (3) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(r) Other than as disclosed in
the Offering Document, the Company and its subsidiaries do not have
any costs or liabilities associated with Environmental Laws
(including, without
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limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(s) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the securities registered pursuant to any Shelf
Registration Statement.
(t) The Company has duly
notified the NASDAQ Stock Market of this offering and to list the
Underlying Shares for quotation on the NASDAQ Stock
Market.
(u) Neither the Company nor
any of its subsidiaries (i) is in violation of its respective
charter or by-laws or similar organizational documents or
(ii) is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any bond,
debenture, note or other evidence of indebtedness, or in any lease,
contract indenture, deed of trust, loan agreement, joint venture or
other agreement or instrument to which the Company or any of its
subsidiaries is a party, or by which it or any of its subsidiaries
or their respective properties may be bound, except where such
default would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; and neither the Company nor any of its subsidiaries is in
violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any court, government or governmental agency
or body, domestic or foreign, having jurisdiction over the Company
or any of its subsidiaries or over their respective properties
except where such violations would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(v) Each of the contracts set
forth on Schedule B hereto (the “ Material Operating
Contracts ”) has been duly authorized, executed and
delivered by, and constitutes a valid and binding obligation of,
the Company and/or its subsidiaries party thereto; (ii) each of the
Material Operating Contracts is in full force and effect as of the
date hereof and, as of each Closing Date, will be in full force and
effect; (iii) neither the Company nor any of its subsidiaries,
nor, to the knowledge of the Company, any of the other parties
thereto, is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under any of the Material
Operating Contracts, except for violations and defaults which
singly or in the aggregate would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(w) Subsequent to the date as
of which information is given in the Offering Document (exclusive
of any amendment or supplement thereto subsequent to the date of
this Agreement), (i) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared, paid
or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and
(iii) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, except in each case as described in the Offering
Document.
(x) Except as described in the
Offering Document, the Company and its subsidiaries have good and
marketable title in fee simple to all real property owned by them
and good and marketable title to all personal property owned by
them, in each case which is material to the business of the Company
and its subsidiaries, taken as a whole, in each case free and clear
of all
5
liens, encumbrances and defects except such
liens, encumbrances and defects that do not in the aggregate
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
propertyby the Company and its subsidiaries; 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 materially
interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries, in each
case except as described in the Offering Document.
(y) The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(z) No material labor dispute
with the employees of the Company or any of its subsidiaries
exists, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbances by the employees of any of its principal suppliers,
manufacturers or contractors that could, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(aa) The Company and each of
its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; neither the Company nor its subsidiaries has been refused
any material insurance coverage sought or applied for; and neither
the Company nor its subsidiaries has 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 from
similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, except as described in the
Offering Document.
(bb) Except as described in
the Offering Document, the Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and have made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as
conducted as of the date hereof, except such as would not, singly
or in the aggregate, result in a material adverse effect on the
Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole, except as described in the
Offering Document.
(cc) 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 in
connection with this offering.
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(dd) The Company and each of
its subsidiaries maintains a system 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.
(ee) The financial statements
of the Company included in the Offering Document present fairly in
all material respects 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; the financial statements of Nordural
hf, an Icelandic company and wholly owned subsidiary of the Company
(“ Nordural ”), incorporated by reference in the
Offering Document present fairly in all material respects the
financial position of Nordural as of the dates shown and its
results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
applicable rules and regulations of the Commission; and the
assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for
presenting the material effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(ff) As of the date hereof,
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities or commitments of sale granted or
issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any shares
of the capital stock of the Company or any of its subsidiaries,
except (1) as otherwise disclosed in the Offering Document and
(2) for the issuance of 10,000 options to Michael Tanchuk,
7,500 performance shares granted to Dick Starkweather and 5,000
performance shares granted to Ragnar Guamundsson and options
granted to the Company’s non-employee directors following the
July 16, 2004 annual meeting of stockholders under the
Company’s Non-Employee Directors Stock Option
Plan.
(gg) (i) Deloitte &
Touche LLP, which has certified certain financial statements of the
Company and each of its subsidiaries, and (ii) to the best of
the Company’s knowledge, PricewaterhouseCoopers hf, which has
certified certain financial statements of Nordural, are each
independent public accountants as required by the Securities Act
and the rules and regulations of the Commission
thereunder.
(hh) The Company is not
engaged in discussions regarding any possible acquisitions or
dispositions that would be required to be disclosed if the Offering
Circular were a Registration Statement on Form S-l and are not so
disclosed.
(ii) Schedule C hereto is
a true and complete list of all of the Company’s significant
subsidiaries (as defined in Rule 1-02(w) of
Regulation S-X) as of the date of this Agreement (the “
Significant Subsidiaries ”).
(jj) The agreements and other
documents (1) filed as exhibits to the Company’s Annual
Report on Form 10-K for the year ended December 31, 2003 or
filed as an exhibit to any
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subsequent filing under the Exchange Act or
(2) relating to Nordural that are to be filed as an exhibit to
the Company’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004 constitute all of the outstanding material
contracts of the Company and its subsidiaries taken as a whole
required to be filed as exhibits under Item 601 of
Regulation S-K.
(kk) To the Company’s
knowledge, the section in the Offering Circular entitled
“Summary—Recent Developments—The Planned Gramercy
Acquisition” does 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 ofthe circumstances
under which they were made, not misleading.
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% of the principal amount thereof
plus accrued interest, if any, from August 9, 2004 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 ScheduleA 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 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 wire transfer to an
account specified by the Company drawn to the order of the Company
at the office of Davis Polk & Wardwell, New York, N.Y., at
10:00 AM. (New York time), on August 9, 2004, 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 Davis Polk &Wardwell,
New York, N.Y., 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 notmore than 45 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 per principal amount of
Offered Securities (including any accrued interest thereonto the
related Optional Closing Date) to be paid for the Firm Securities.
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) and may be purchased by the Purchasers for
the purpose of covering over-allotments made in connection with the
sale of the Firm Securities or otherwise. 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 be neither earlier
than the First Closing Date nor later than ten full business days
after written notice of election to purchase Optional Securities is
given.
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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 forDTC 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 wire transfer to an
account specified by the Company drawn to the order of the Company
at the office of Davis Polk & Wardwell, New York, N.Y. 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 a
“Qualified Institutional Buyer” as defined in
Rule 144A (a “ QIB ”).
(b) Each Purchaser severally
acknowledges that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold except
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that
it has solicited offers for, offered and sold the Offered
Securities and will solicit offers for, offer and sell the Offered
Securities as part of its distribution only in accordance with
Rule 144A to persons it reasonably believes are
QIBs.
(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 solicit offers
for, 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 or in any manner involving a
public offering within the meaning of Section 4(2) of 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 l44A of any of the Offered
Securities, to deliver either with or prior to the confirmation 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.
5. Certain Agreements of the Company. The Company
agrees with the several Purchasers that:
(a) The Company will advise
CSFB promptly of any proposal to amend or supplement the Offering
Document and will not effect such amendment or supplementation
without CSFB’s consent, which will not be unreasonably
withheld. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers any event occurs as a
restilt of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Offering Document is delivered to a purchaser, not misleading, the
Company promptly will notify CSFB of such event and promptly will
prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFB’s consent
to, nor the Purchasers’ delivery to offerees or investors of,
any such amendment or supplement shall constitute a
9
waiver of any of the conditions set forth in
Section 6. The Purchasers agree to notify the Company of the
completion of the resale of the Offered Securities by the
Purchasers.
(b) The Company will furnish
to CSFB copies of the Offering Document and all amendments and
supplements to such document, in each case as soon as available and
in such quantities as CSFB requests. At any time when the Company
is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to CSFB
(and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to
Rule 144A(d)(4) (or any successor provision thereto) in order
to permit compliance with Rule l44A in connection with resales by
such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such
documents.
(c) The Company will endeavor
to arrange for the qualification of the Offered Securities for sale
under the laws of such states in the United States as CSFB
reasonably designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities
by the Purchasers provided that the Company will not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such state or to subject itself to
taxation in any jurisdiction where it is not now so
subject.
(d) During the period of two
years after the later of the First Closing Date and the last
Optional Closing Date, the Company will not, nor will it permit any
of its subsidiaries to, and it will use its best efforts to cause
its other affiliates (as defined in Rule 144 under the
Securities Act) not to, resell any of the Offered Securities that
have been reacquired by any of them that constitute
“restricted” securities under Rule 144 except
pursuant to an effective registration statement under the
Securities Act.
(e) During the period of two
years after the later of the First Closing Date and the last
Optional Closing Date, the Company will not take any steps that
would cause the Offered Securities not to be eligible to be offered
under Rule 144A.
(f) Whether or not the
transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid
all expenses incidental to the performance of its obligations under
this Agreement, the Indenture and the Registration Rights Agreement
including (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with
the execution, issue, authentication, packaging and initial
delivery of the Offered Securities, the preparation and printing of
this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities (but
not including the fees for professional services of counsel to the
Purchasers); (iii) the cost of qualifying the Offered
Securities for trading in The Portal SM Market (“
PORTAL ”) of The Nasdaq Stock Market, Inc. and any
expenses incidental thereto; (iv) the cost of any advertising
approved by the Company in connection with the issue of the Offered
Securities; (v) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification
of the Offered Securities for sale under the laws of such
jurisdictions as CSFB designates and the printing of memoranda
relating thereto; (vi) for any fees charged by investment
rating agencies for the rating of the Offered Securities;
(vii) for expenses incurred in distributing the Offering
Document (including any amendments and supplements thereto) to the
Purchasers and potential investors; and (viii) the costs and
expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing
of the offering of the Offered Securities, including,
without
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