EXECUTION COPY
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NOVAR USA INC.
To Be Merged With and Into
CA INVESTMENT CORP.
and Renamed
CLARKE AMERICAN CORP.
AND
THE GUARANTORS LISTED ON SCHEDULE I HERETO
$175,000,000
11 3/4% Senior Notes due 2013
Purchase Agreement
December 8, 2005
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
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NOVAR USA INC.
To Be Merged With and Into
CA INVESTMENT CORP.
and Renamed
CLARKE AMERICAN CORP.
AND
THE GUARANTORS LISTED ON SCHEDULE I HERETO
$175,000,000
11 3/4% Senior Notes due 2013
PURCHASE AGREEMENT
December 8, 2005
New York, New York
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies & Gentlemen:
Novar USA Inc., a Delaware corporation (the "TARGET"), to be merged
with
and into CA Investment Corp., a Delaware corporation ("CAIC") in
which CAIC will
be the surviving entity (the "MERGER") and will be renamed Clarke
American
Corp., a Delaware corporation (the "COMPANY"), proposes to issue
and sell to
Bear, Stearns & Co. Inc. and J.P. Morgan Securities Inc. (each,
an "INITIAL
PURCHASER" and together, the "INITIAL PURCHASERS"), $175,000,000 in
aggregate
principal amount of 11 3/4% Senior Notes due 2013 (the "INITIAL
NOTES"), subject
to the terms and conditions set forth herein.
The Notes (as defined) will be issued pursuant to an indenture (the
"INDENTURE"), to be dated the Closing Date (as defined), among the
Company, the
Guarantors (as defined) listed on Schedule I hereto, and The Bank
of New York,
as trustee (the "TRUSTEE"). The Notes will be fully and
unconditionally
guaranteed (the "GUARANTEES") as to payment of principal, interest,
premium and
liquidated damages, if any, on a senior unsecured basis, jointly
and severally
by each entity listed on Schedule I hereto (the "GUARANTORS").
The Notes are being issued and sold in connection with the
acquisition (the
"ACQUISITION") by M&F Worldwide Corp., a Delaware corporation,
("M&F") of all of
the outstanding stock of the Target, pursuant to the Stock Purchase
Agreement,
dated as of October 31, 2005 (the "ACQUISITION AGREEMENT"). Upon
the
consummation of the Acquisition, all of the Target's outstanding
capital stock
will be owned directly or indirectly by M&F. In order to pay
for the Acquisition
and pay related fees and expenses, (i) the Company and the
Guarantors expect to
enter into a new senior secured credit facility in the amount of
$480.0 million (the "NEW SENIOR CREDIT FACILITY") pursuant to a
credit agreement
among the Company, the Guarantors party thereto and the lenders
party thereto
(the "CREDIT AGREEMENT"), (ii) the Company expects to issue and to
become
obligated under the Notes and (iii) M&F will make a cash
contribution of $203.0
million to the common equity capital of CAIC (the "EQUITY
CONTRIBUTION"). As
used herein, the term "the TRANSACTIONS" means collectively (w)
offering the
Initial Notes, (x) entering into the New Senior Credit Facility,
(y) the
Acquisition and (z) the Merger.
In addition, on the Closing Date, the Company and the Guarantors
will agree
to become bound by this Agreement pursuant to the First Amendment
to the
Purchase Agreement, dated as of the date hereof, among the Company,
the
Guarantors and the Initial Purchasers, substantially in the form
attached hereto
as Exhibit A (the "FIRST AMENDMENT"). The representations,
warranties and
agreements of the Company and the Guarantors under this Agreement
shall not
become effective until the Company and the Guarantors execute the
First
Amendment, at which time such representations, warranties and
agreements shall
become effective and each of the Company and the Guarantors shall
become party
to this Agreement.
1. Issuance of Securities. Target, to be merged with and into CAIC
in
the Merger and renamed Clarke American Corp., proposes, upon the
terms and
subject to the conditions set forth herein, to issue and sell to
the Initial
Purchasers an aggregate of $175,000,000 in principal amount of
Initial Notes.
The Initial Notes and the Exchange Notes (as defined) issuable in
exchange
therefor are collectively referred to herein as the "NOTES."
Upon original issuance thereof, and until such time as the same is
no
longer required under the applicable requirements of the Securities
Act of 1933,
as amended (the "ACT"), the Initial Notes (and all securities
issued in exchange
therefor or in substitution thereof other than the Exchange Notes)
shall bear
the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE
ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THE
SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF
RULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d)
TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)
(1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR"))
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
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OPINION OF COUNSEL ACCEPTABLE TO CLARKE AMERICAN CORP. THAT SUCH
TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH
ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND
BASED UPON AN OPINION OF COUNSEL IF CLARKE AMERICAN CORP. SO
REQUESTS, (2)
TO CLARKE AMERICAN CORP. OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
2. Offering. The Initial Notes will be offered and sold to the
Initial
Purchasers pursuant to an exemption from the registration
requirements under the
Act. CAIC and the Target have prepared a preliminary offering
memorandum, dated
November 25, 2005 (the "PRELIMINARY OFFERING MEMORANDUM"), and a
final offering
memorandum, dated December 8, 2005 (the "OFFERING MEMORANDUM"),
relating to the
Company, its subsidiaries and the Notes.
The Initial Purchasers have advised CAIC and the Target that the
Initial
Purchasers will make offers (the "EXEMPT RESALES") of the Initial
Notes on the
terms set forth in the Offering Memorandum, as amended or
supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be
"qualified
institutional buyers" ("QIBS"), as defined in Rule 144A under the
Act and (ii)
non-U.S. persons outside the United States in reliance upon
Regulation S
("REGULATION S") under the Act (each, a "REG S INVESTOR"). The QIBs
and the Reg
S Investors are collectively referred to herein as the "ELIGIBLE
PURCHASERS."
The Initial Purchasers will offer the Initial Notes to such
Eligible Purchasers
initially at a price equal to 100.0% of the principal amount
thereof. Such price
may be changed at any time without notice.
Holders (including subsequent transferees) of the Initial Notes
will have
the registration rights set forth in the registration rights
agreement relating
thereto (the "REGISTRATION RIGHTS AGREEMENT"), among the Initial
Purchasers, the
Guarantors and the Company, to be dated the Closing Date, for so
long as such
Initial Notes constitute "TRANSFER RESTRICTED SECURITIES" (as
defined in the
Registration Rights Agreement). Pursuant to the Registration Rights
Agreement,
the Company and the Guarantors will agree to file with the
Securities and
Exchange Commission (the "COMMISSION"), under the circumstances set
forth
therein, (i) a registration statement under the Act (the "EXCHANGE
OFFER
REGISTRATION STATEMENT") relating to the Company's 11 3/4% Senior
Notes due 2013
(the "EXCHANGE NOTES") and Guarantees thereof to be offered in
exchange for the
Initial Notes and Guarantees thereof (the "EXCHANGE OFFER") and
(ii) under
certain circumstances, a shelf registration statement pursuant to
Rule 415 under
the Act (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange
Offer Registration Statement, the "REGISTRATION STATEMENTS")
relating to the
resale by certain holders of the Initial Notes and the Guarantees
thereof, and
to use their commercially reasonable efforts to cause such
Registration
Statements to be declared effective and to consummate the Exchange
Offer.
This Agreement (including the First Amendment), the Initial Notes,
the
Guarantees of the Initial Notes, the Exchange Notes, the Guarantees
of the
Exchange Notes, the Indenture, the Registration Rights Agreement,
the Credit
Agreement and the Acquisition Agreement are hereinafter referred to
collectively
as the "OPERATIVE DOCUMENTS."
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3. Purchase, Sale and Delivery.
(a) On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to its terms and
conditions, CAIC
agrees to issue and sell to each Initial Purchaser, and each
Initial
Purchaser agrees, severally and not jointly, to purchase from CAIC,
the
principal amount of Initial Notes set forth opposite such Initial
Purchaser's name on Schedule II hereto. The purchase price for the
Initial
Notes will be $975.00 per $1,000 principal amount of Initial Notes.
(b) Delivery of the Initial Notes shall be made, against payment
of the purchase price therefor, at the offices of Paul, Weiss,
Rifkind,
Wharton & Garrison LLP, New York, New York or such other
location as may be
mutually acceptable. Such delivery and payment shall be made at
9:00 a.m.,
New York City time, on December 15, 2005 or at such other time as
shall be
agreed upon by the Initial Purchasers and the CAIC. The time and
date of
such delivery and payment are herein called the "CLOSING DATE."
(c) On the Closing Date, one or more Initial Notes in definitive
global form, registered in the name of Cede & Co., as nominee
of The
Depository Trust Company ("DTC"), having an aggregate amount
corresponding
to the aggregate principal amount of the Initial Notes (the "GLOBAL
NOTES")
sold pursuant to Exempt Resales to Eligible Purchasers shall be
delivered
by the Company to the Initial Purchasers (or as the Initial
Purchasers
direct), against payment by the Initial Purchasers of the purchase
price
therefor, by wire transfer of same day funds, to an account
designated by
CAIC; provided that CAIC shall give at least one business day's
prior
written notice to the Initial Purchasers of the information
required to
effect such wire transfer. The Global Notes shall be made available
to the
Initial Purchasers for inspection not later than 5:00 p.m., New
York City
time, on the business day preceding the Closing Date.
4. Agreements of CAIC, the Company and the Guarantors. As of the
date
hereof, CAIC, and as of the Closing Date, the Company and each
Guarantor,
jointly and severally, covenants and agrees with the Initial
Purchasers as
follows:
(a) To advise the Initial Purchasers promptly and, if requested
by the Initial Purchasers, confirm such advice in writing (i) of
the
issuance by any state securities commission or other regulatory
authority
of any stop order or order suspending the qualification or
exemption from
qualification of any Notes or the Guarantees thereof for offering
or sale
in any jurisdiction, or the initiation of any proceeding for such
purpose
by any state securities commission or other regulatory authority
and (ii)
of the happening of any event that makes any statement of a
material fact
made in the Preliminary Offering Memorandum or the Offering
Memorandum
untrue or that requires the making of any additions to or changes
in the
Preliminary Offering Memorandum or the Offering Memorandum in order
to make
the statements therein, in the light of the circumstances under
which they
are made, not misleading. CAIC, the Company and the Guarantors
shall use
their respective commercially reasonable efforts to prevent the
issuance of
any stop order or order suspending the qualification or exemption
from
qualification of any Note or the Guarantees thereof under any state
securities or Blue Sky laws and, if at any time any state
securities
commission or other regulatory authority shall issue an order
suspending
the qualification or exemption from qualification of any Note or
the
Guarantees thereof under any state securities or Blue Sky laws,
CAIC, the
Company and the Guarantors shall use their respective commercially
reasonable efforts to obtain the withdrawal or lifting of such
order at the
earliest practicable time.
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(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to CAIC or the Company,
without
charge, as many copies of the Preliminary Offering Memorandum and
the
Offering Memorandum, and any amendments or supplements thereto, as
the
Initial Purchasers may reasonably request. CAIC, the Company and
the
Guarantors consent to the use of the Preliminary Offering
Memorandum and
the Offering Memorandum, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection
with
Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum during such period that, in
the
opinion of counsel for the Initial Purchasers, the Preliminary
Offering
Memorandum or the Offering Memorandum is required by law to be
delivered in
connection with Exempt Resales and in connection with market-making
activities of the Initial Purchasers for so long as any Initial
Notes are
outstanding unless the Initial Purchasers previously have been
advised
thereof and have not objected thereto within a reasonable time
after being
furnished a copy thereof. CAIC, the Company and the Guarantors
shall
promptly prepare, upon the Initial Purchasers' request, any
amendment or
supplement to the Preliminary Offering Memorandum or the Offering
Memorandum that may be necessary or advisable in connection with
such
Exempt Resales or such market making activities.
(d) If, during the period referred to in 4(c) above, any event
occurs as a result of which, in the judgment of CAIC or the Company
or in
the reasonable opinion of counsel for CAIC and the Company or
counsel for
the Initial Purchasers, it becomes necessary or advisable to amend
or
supplement the Preliminary Offering Memorandum or the Offering
Memorandum
in order to make the statements therein, in the light of the
circumstances
when such Preliminary Offering Memorandum or Offering Memorandum is
delivered to an Eligible Purchaser, not misleading, or if it is
necessary
or advisable to amend or supplement the Preliminary Offering
Memorandum or
the Offering Memorandum to comply with applicable law, (i) to
notify the
Initial Purchasers and (ii) to use its commercially reasonable
efforts to
prepare forthwith, subject to Section 4(c) above, an appropriate
amendment
or supplement to such Preliminary Offering Memorandum or the
Offering
Memorandum so that the statements therein as so amended or
supplemented
will not, in the light of the circumstances when it is so
delivered, be
misleading, or so that such Preliminary Offering Memorandum or the
Offering
Memorandum will comply with applicable law.
(e) To use commercially reasonable efforts to cooperate with the
Initial Purchasers and counsel for the Initial Purchasers in
connection
with the qualification or registration of the Initial Notes and the
Guarantees thereof under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may reasonably request and
to
continue such qualification in effect so long as required for the
Exempt
Resales; provided, however, that neither CAIC, nor the Company nor
the
Guarantors shall be required in connection therewith to register or
qualify
as a foreign corporation where it is not now so qualified or to
take any
action that would subject it to service of process in suits or
taxation, in
any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to
the
performance of the obligations of CAIC, the Company and the
Guarantors
hereunder, including in connection with: (i) the preparation,
printing,
filing and distribution of the Preliminary Offering Memorandum and
the
Offering Memorandum (including, without limitation, financial
statements)
and all amendments and supplements thereto required pursuant
hereto, (ii)
the preparation (including, without limitation, duplication costs)
and
delivery
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of all agreements, correspondence and all other documents prepared
and
delivered in connection herewith and with the Exempt Resales, (iii)
the
issuance, transfer and delivery of the Initial Notes and the
Guarantees
thereof to the Initial Purchasers, (iv) the qualification or
registration
of the Notes and the Guarantees thereof for offer and sale under
the
securities or Blue Sky laws of the several states (including,
without
limitation, the cost of printing and mailing a preliminary and
final Blue
Sky memorandum and the reasonable fees and disbursements of one
counsel
(and any local counsel) for the Initial Purchasers relating
thereto), (v)
the furnishing of such copies of the Preliminary Offering
Memorandum and
the Offering Memorandum, and all amendments and supplements
thereto, as may
reasonably be requested for use in connection with Exempt Resales,
(vi) the
preparation of certificates for the Notes and the Guarantees
thereof
(including, without limitation, printing and engraving thereof),
(vii) the
fees, disbursements and expenses of CAIC's, the Company's and the
Guarantors' counsel and accountants, (viii) all fees and expenses
(including fees and expenses of counsel) of CAIC, the Company and
the
Guarantors in connection with the approval of the Notes by DTC for
"book-entry" transfer, (ix) the rating of the Notes by rating
agencies, (x)
the reasonable fees and expenses of the Trustee and its counsel,
(xi) the
performance by CAIC, the Company and the Guarantors of their other
obligations under this Agreement and the other Operative Documents,
and
(xii) "roadshow" travel and other expenses incurred in connection
with the
marketing and sale of the Notes.
(g) To use the proceeds from the sale of the Initial Notes
substantially in the manner described in the Preliminary Offering
Memorandum and the Offering Memorandum under the caption "Use of
Proceeds."
(h) For so long as any of the Notes remain outstanding, not to
voluntarily claim, and to resist actively any attempts to claim,
the
benefit of any usury laws against the holders of any Notes.
(i) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Act) that
would be integrated with the sale of the Initial Notes in a manner
that
would require the registration under the Act of the sale to the
Initial
Purchasers or the Eligible Purchasers of the Initial Notes or to
take any
other action that would result in the Exempt Resales not being
exempt from
registration under the Act.
(j) For so long as any of the Initial Notes remain outstanding
and during any period in which the Company and the Guarantors are
not
subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, as
amended (the "EXCHANGE ACT"), to make available to any holder or
beneficial
owner of Initial Notes in connection with any sale thereof and any
prospective purchaser of such Initial Notes from such holder or
beneficial
owner, the information required by Rule 144A(d)(4) under the Act.
(k) For so long as any of the Notes remain outstanding, to comply
with all of its agreements set forth in the representation letters
to DTC
relating to the approval of the Notes by DTC for "book-entry"
transfer.
(l) To use commercially reasonable efforts to effect the
inclusion of the Notes in The PORTAL(SM) Market ("PORTAL") and
obtain
approval of the Initial Notes by DTC for "book-entry" transfer.
(m) During a period of five years following the Closing Date, for
so long as any of the Initial Notes remain outstanding, if not
otherwise
available on the Commission's Electronic Data Gathering, Analysis,
and
Retrieval ("EDGAR") system, to deliver without charge
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to the Initial Purchasers, as the Initial Purchasers may reasonably
request, promptly upon their becoming available, copies of (i) all
publicly
available reports or other information that the Company or the
Guarantors
mail or otherwise make available to their stockholders and (ii) all
reports, financial statements and proxy or information statements
filed by
the Company or the Guarantors with the Commission or any national
securities exchange.
(n) Prior to the Closing Date, to furnish to the Initial
Purchasers, as soon as practicable in the ordinary course by CAIC
or the
Target, copies of any unaudited interim financial statements
(excluding the
footnotes thereto if they are unavailable) for any period
subsequent to the
periods covered by the financial statements in the Offering
Memorandum.
(o) Not to take, directly or indirectly, any action designed to,
or that might reasonably be expected to, cause or result in
stabilization
or manipulation of the price of any security of the Company to
facilitate
the sale or resale of the Notes. Except as permitted in writing by
the
Initial Purchasers, none of CAIC, the Company nor any Guarantor
will
distribute any (i) preliminary offering memorandum, including,
without
limitation, the Preliminary Offering Memorandum, (ii) offering
memorandum,
including, without limitation, the Offering Memorandum, or (iii)
other
offering material in connection with the offering and sale of the
Notes.
(p) Prior to the Closing Date, not to issue any press release or
other communications, directly or indirectly, or hold any press
conference
with respect to the issuance of the Initial Notes, CAIC, the Target
or any
of its subsidiaries, the properties, business, results of
operations,
condition (financial or otherwise), affairs or prospects of CAIC,
the
Company or any of its subsidiaries, without the prior consent of
the
Initial Purchasers, such consent not to be unreasonably withheld or
delayed.
(q) Prior to the Closing Date, not to amend any material
provision of the Acquisition Agreement without the prior written
consent of
the Initial Purchasers, such consent not to be unreasonably
withheld or
delayed.
(r) Without the prior consent of the Initial Purchasers, not to
make any offer relating to the Notes that would constitute a "free
writing
prospectus" (if the offering of the Notes was made pursuant to a
registered
offering under the Act) as defined in Rule 405 under the Act (a
"FREE
WRITING OFFERING DOCUMENT"); any such Free Writing Offering
Document the
use of which has been consented to by the Initial Purchasers is
listed on
Schedule IV(a) hereto; if at any time following issuance of a Free
Writing
Offering Document any event occurred or occurs as a result of which
such
Free Writing Offering Document would conflict with the information
in the
Preliminary Offering Memorandum or the Offering Memorandum or 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 light of the
circumstances then prevailing, not misleading, CAIC or the Company
will
give prompt notice thereof to the Initial Purchasers and, if
requested by
the Initial Purchasers, will prepare and furnish without charge to
each
Initial Purchaser a Free Writing Offering Document or other
document which
will correct such conflict, statement or omission.
(s) To use its commercially reasonable efforts to do and perform
all things required or necessary to be done and performed under
this
Agreement prior to or after the Closing Date and to satisfy all
conditions
precedent on its part to the delivery of the Initial Notes and the
Guarantees thereof.
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The Initial Purchasers may, in their sole discretion, waive in
writing
the performance by CAIC, the Company or the Guarantors of any one
or more
of the foregoing covenants or extend the time for their performance
5. Representations and Warranties.
(a) As of the date hereof, CAIC, with respect to itself and to
its knowledge, with respect to the Target, the Company and each
Guarantor,
with respect to Sections 5(a)(xviii), (xx), (xxii), (xxiii),
(xxiv), (xxv),
(xxvi), (xxvii), (xxviii), (xxix), and (xxx) hereof, and as of the
Closing
Date, the Company and each Guarantor, jointly and severally,
represent and
warrant to the Initial Purchasers that:
(i) The Preliminary Offering Memorandum as of its date does not,
and the Offering Memorandum as of its date does not, and as of the
Closing Date will not, and any supplement or amendment thereto, as
of
its date, will not, contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; the
Preliminary Offering Memorandum as supplemented by the information
and
documents listed in Schedule IV(b) hereto, taken together (the
"DISCLOSURE PACKAGE") as of the Applicable Time (as defined), did
not
include any untrue statement of a material fact or omit to state
any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties
contained
in this paragraph shall not apply to statements in or omissions
from
the Preliminary Offering Memorandum or the Offering Memorandum (or
any
supplement or amendment thereto, including the Disclosure Package)
made in reliance upon and in conformity with information relating
to
the Initial Purchasers furnished to CAIC or the Company in writing
by
the Initial Purchasers expressly for use therein. For purposes of
this
Agreement, the "APPLICABLE TIME" is 5:00 p.m. (New York City time)
on
the date of this Agreement.
(ii) CAIC, the Company and each of their respective subsidiaries
(A) has been duly incorporated or formed and is validly existing as
a
corporation or other entity in good standing under the laws of its
jurisdiction of incorporation or formation, (B) has all requisite
corporate or other power and authority to carry on its business as
it
is currently being conducted and as described in the Preliminary
Offering Memorandum and the Offering Memorandum and to own, lease
and
operate its properties, and (C) is duly qualified and is in good
standing as a foreign corporation or other entity authorized to do
business in each jurisdiction in which the nature of its business
or
its ownership or leasing of property requires such qualification,
except where the failure to be so qualified could not reasonably be
expected to (1) result, individually or in the aggregate, in a
material adverse effect on the properties, business, results of
operations, condition (financial or otherwise), affairs or
prospects
of CAIC, the Company and the Guarantors, taken as a whole or (2) in
any manner draw into question the validity of this Agreement or any
other Operative Document or the transactions described in the
Preliminary Offering Memorandum and the Offering Memorandum under
the
caption "Use of Proceeds" (any of the events set forth in clauses
(1)
or (2), a "MATERIAL ADVERSE EFFECT").
(iii) CAIC, the Company and each Guarantor has all requisite
corporate or other power and authority to execute, deliver and
perform
its obligations under this Agreement and each other Operative
Document
to which it is a party and to consummate
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the transactions contemplated hereby and thereby, including,
without
limitation, the corporate or other power and authority to issue,
sell
and deliver the Initial Notes and to issue and deliver the
Guarantees
thereof as provided herein and therein.
(iv) As of the date hereof, CAIC does not have any subsidiaries,
and as of the Closing Date, upon consummation of the Transactions,
the
Company will not have any subsidiaries other than the entities
listed
on Schedule III hereto.
(v) Except as described in the Preliminary Offering Memorandum
and the Offering Memorandum, all of the outstanding shares of
capital
stock of each subsidiary of the Company are owned, directly or
indirectly, by the Company, free and clear of any security
interest,
claim, lien, limitation on voting rights or encumbrance (other than
transfer restrictions imposed by the New Senior Credit Facility,
the
Act and the securities or Blue Sky laws of certain jurisdictions);
and
all such securities have been duly authorized, validly issued and
are
fully paid and nonassessable and were not issued in violation of
any
preemptive or similar rights.
(vi) Except as described in the Preliminary Offering Memorandum
and the Offering Memorandum, there are not currently any
outstanding
subscriptions, rights, warrants, calls, commitments of sale or
options
to acquire, or instruments convertible into or exchangeable for,
any
capital stock or other equity interests of the Company and its
subsidiaries.
(vii) When the Initial Notes and the Guarantees thereof are
issued and delivered pursuant to this Agreement, no Initial Note or
Guarantee thereof will be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company or any
Guarantor
that are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a United States
automated
interdealer quotation system.
(viii) This Agreement has been duly and validly authorized,
executed and delivered by CAIC and is the legal, valid and binding
agreement of CAIC, enforceable against it in accordance with its
terms, and when the First Amendment has been duly and validly
authorized, executed and delivered by the Company and each
Guarantor,
this Agreement will be the legal, valid and binding agreement of
the
Company and each Guarantor, in each case, enforceable against each
of
them in accordance with its terms, subject to applicable
bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and
subject
to general principles of equity (regardless of whether
enforceability
is considered in a proceeding in equity or at law).
(ix) At the Closing Date, the First Amendment will be duly and
validly authorized, executed and delivered by the Company and each
Guarantor and when executed and delivered will be the legal, valid
and
binding agreement of the Company and each Guarantor, enforceable
against each of them in accordance with its terms, subject to
applicable bankruptcy, insolvency fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights of
creditors generally and subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding
in
equity or at law).
9
(x) The Indenture has been duly and validly authorized by CAIC,
and at the Closing Date will be duly and validly authorized by the
Company and each Guarantor and, when duly executed and delivered by
the Company and each Guarantor, will be the legal, valid and
binding
agreement of the Company and each Guarantor, enforceable against
each
of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the rights of creditors
generally and subject to general principles of equity (regardless
of
whether enforceability is considered in a proceeding in equity or
at
law). On the Closing Date, the Indenture will conform in all
material
respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT"), and the rules and regulations
of
the Commission applicable to an indenture that is qualified
thereunder. The Disclosure Package and the Offering Memorandum each
contain a summary of the terms of the Indenture, which summary is
accurate in all material respects.
(xi) The Registration Rights Agreement has been duly and validly
authorized by CAIC, and at the Closing Date will be duly and
validly
authorized by the Company and each Guarantor and, when duly
executed
and delivered by the Company and each Guarantor, will be the legal,
valid and binding obligation of the Company and each Guarantor,
enforceable against each of them in accordance with its terms,
subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights of
creditors generally and subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding
in
equity or at law). The Preliminary Offering Memorandum and the
Offering Memorandum each contain a summary of the terms of the
Registration Rights Agreement, which summary is accurate in all
material respects.
(xii) The Initial Notes have been duly and validly authorized by
CAIC for issuance and sale to the Initial Purchasers pursuant to
this
Agreement, and at the Closing Date, the Initial Notes will be duly
and
validly authorized by the Company and, when issued and
authenticated
in accordance with the terms of the Indenture and delivered against
payment therefor in accordance with the terms hereof and thereof,
will
be the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms and entitled
to
the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and
subject
to general principles of equity (regardless of whether
enforceability
is considered in a proceeding in equity or at law). The Disclosure
Package and the Offering Memorandum each contain a summary of the
terms of the Notes, which summary is accurate in all material
respects.
(xiii) At the Closing Date, the Guarantees of the Initial Notes
will be duly and validly authorized by each Guarantor and, when
executed and delivered in accordance with the terms of the
Indenture,
will be the legal, valid and binding obligations of such Guarantor,
enforceable against it in accordance with their terms and entitled
to
the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and
subject
to general principles of equity (regardless of whether
enforceability
is considered in a proceeding in equity or at law). The Disclosure
Package and the Offering Memorandum each contain a summary of the
terms of the Guarantees of the Initial Notes, which summary is
accurate in all material respects.
10
(xiv) The Exchange Notes have been duly and validly authorized
for issuance by CAIC, and at the Closing Date the Exchange Notes
will
be duly authorized by the Company and, when issued and
authenticated
in accordance with the terms of the Exchange Offer, the
Registration
Rights Agreement and the Indenture, will be the legal, valid and
binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the
rights of creditors generally and subject to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
(xv) At the Closing Date, the Guarantees of the Exchange Notes
will be duly and validly authorized by each Guarantor, and when
executed and delivered in accordance with the terms of the
Indenture
and when the Exchange Notes have been issued and authenticated in
accordance with the terms of the Exchange Offer and the Indenture,
will be the legal, valid and binding obligations of such Guarantor,
enforceable against it in accordance with their terms and entitled
to
the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and
subject
to general principles of equity (regardless of whether
enforceability
is considered in a proceeding in equity or at law).
(xvi) CAIC has delivered to the Initial Purchasers true and
correct copies of the Acquisition Agreement and all material
documents
and agreements related to the transactions contemplated thereby,
and
there have been no amendments, modifications or waivers thereto or
in
the exhibits or schedules thereto, except as have been delivered to
the Initial Purchasers.
(xvii) At the Closing Date, the Credit Agreement will be duly and
validly authorized by the Company and each guarantor party thereto
and, when duly executed and delivered by the Company and each
guarantor party thereto, will be the legal, valid and binding
obligation of the Company and each guarantor party thereto,
enforceable against each of them in accordance with its terms,
subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights of
creditors generally and subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding
in
equity or at law). The Disclosure Package and the Offering
Memorandum
each contain a summary of the terms of the Credit Agreement, which
summary is accurate in all material respects and reflects the
proposed
terms as of the date hereof.
(xviii) Each of CAIC and the Target and its respective
subsidiaries, is not (A) in violation of its charter or bylaws or
other organizational documents, (B) in default in the performance
of
any bond, debenture, note, indenture, mortgage, deed of trust or
other
agreement or instrument to which it is a party or by which it is
bound
or to which any of its properties is subject that, individually or
in
the aggregate, could reasonably be expected to have a Material
Adverse
Effect or (C) except as disclosed in the Preliminary Offering
Memorandum and the Offering Memorandum, in violation of any local,
state, federal or foreign law, statute, ordinance, rule,
regulation,
requirement, judgment or court decree (including, without
limitation,
environmental laws, statutes, ordinances, rules, regulations,
requirements, judgments or court decrees) applicable to it or any
of
its assets or properties (whether owned or leased) that,
individually
or in the aggregate, could reasonably be expected to have a
Material
Adverse Effect. To the knowledge of CAIC,
11
there exists no condition that, with notice, the passage of time or
otherwise, would constitute a default under any such document or
instrument.
(xix) Assuming the accuracy of the Initial Purchasers'
representations and warranties in Section 5(b) of this Agreement,
none
of (A) the execution, delivery, assumption or performance by CAIC,
the
Company or any Guarantor, of this Agreement, or any of the other
Operative Documents to which it is a party, (B) the issuance and
sale
of the Notes by the Company, (C) the assumption of CAIC's
obligations
by the Company and the issuance of the Guarantees by any of the
Guarantors, (D) the consummation by the Company, CAIC or the
Guarantors of the transactions described in the Preliminary
Offering
Memorandum and the Offering Memorandum under the caption "Use of
Proceeds," (E) the merger of Novar USA Inc. with and into CAIC or
(F)
the compliance in all material respects by CAIC with all of the
provisions of the Acquisition Agreement required to be complied
with
by it on or before the Closing Date violates, conflicts with or
constitutes a breach of any of the terms or provisions of, or will
violate, conflict with or constitute a breach of any of the terms
or
provisions of, or a default under (or an event that with notice or
the
lapse of time, or both, would constitute a default under), or
require
consent under, or result in the imposition of a lien or encumbrance
on
any properties of CAIC, the Company, the Target or their respective
subsidiaries, or an acceleration of any indebtedness of CAIC, the
Company, the Target or their respective subsidiaries pursuant to,
(1)
the charter or bylaws or other organizational documents of CAIC,
the
Company, the Target or their respective subsidiaries, (2) any bond,
debenture, note, indenture, mortgage, deed of trust or other
agreement
or instrument to which CAIC, the Company, the Target or their
respective subsidiaries is a party or by which any of them is bound
or
to which any of their properties are subject (except as set forth
on
Schedule V hereto), (3) any statute, rule or regulation applicable
to
CAIC, the Company, the Target or their respective subsidiaries or
any
of their assets or properties or (4) any judgment, order or decree
of
any court or governmental agency, body or authority or
administrative
agency having jurisdiction over CAIC, the Company, the Target, or
their respective subsidiaries or any of their assets or properties
except, with respect to clauses (2) through (4) as could not
reasonably be expected to result in a Material Adverse Effect.
Assuming the accuracy of the Initial Purchasers' representations
and
warranties in Section 5(b) of this Agreement, no consent, approval,
authorization or order of, or filing, registration, qualification,
license or permit of or with, (A) any court or governmental agency,
body or authority or administrative agency or (B) any other person
is
required (except as set forth on Schedule V hereto) for (1) the
execution, delivery and performance by CAIC, the Company or the
Guarantors of this Agreement or any of the other Operative
Documents
to which it is a party, (2) the issuance and sale of the Notes, the
issuance of the Guarantees and the transactions contemplated hereby
and thereby or (3) the compliance in all material respects by CAIC
with all of the provisions of the Acquisition Agreement required to
be
complied with by it on or prior to the Closing Date, except (w)
such
consents as have been or will be obtained or made on or prior to
the
Closing Date, (x) registration of the Exchange Offer or resale of
the
Initial Notes under the Act pursuant to the Registration Rights
Agreement, and qualification of the Indenture under the Trust
Indenture Act, in connection with the issuance of the Exchange
Notes,
(y) such filings and recordings required to perfect liens under the
documents executed in connection with the New Senior Credit
Facility
and (z) where the failure to obtain such consents, approvals,
authorizations or orders, filings, registrations, qualifications,
licenses or permits could not be reasonably expected to result in a
Material Adverse Effect.
12
(xx) There is (A) no action, suit, investigation or proceeding
before or by any court, arbitrator or governmental agency, body or
authority or administrative agency, domestic or foreign, now
pending,
or, to the knowledge of each of CAIC, the Company and the
Guarantors,
threatened or contemplated, to which CAIC, the Company, the Target
or
any of their respective subsidiaries is or may be a party or to
which
the assets or property of CAIC, the Company, the Target or any of
their respective subsidiaries is or may be subject, (B) no statute,
rule, regulation or order that has been enacted, adopted or issued
by
any governmental agency, body or authority or administrative agency
or
that has been proposed by any governmental agency, body or
authority
or administrative agency and (C) no injunction, restraining order
or
order of any nature by a federal or state court or foreign court of
competent jurisdiction to which CAIC, the Company, the Target or
any
of their respective subsidiaries is or may be subject or to which
the
business, assets or property of CAIC, the Company, the Target or
any
of their respective subsidiaries is or may be subject, that, in the
case of clauses (A), (B) and (C) above, (1) is required to be
disclosed in the Preliminary Offering Memorandum and the Offering
Memorandum and that is not so disclosed or (2) could, individually
or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xxi) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental
agency that prevents the issuance of the Notes or the Guarantees or
prevents or suspends the use of the Offering Memorandum; no
injunction, restraining order or order of any nature by a federal
or
state court of competent jurisdiction has been issued that prevents
the issuance of the Notes or the Guarantees or prevents or suspends
the sale of the Notes or the Guarantees in any jurisdiction
referred
to in Section 4(e) hereof; and every request of any securities
authority or agency of any jurisdiction for additional information
in
connection with the offering of Notes has been complied with in all
material respects.
(xxii) There is (A) no significant unfair labor practice
complaint pending against the Company, the Target or any of their
respective subsidiaries, nor, to the knowledge of CAIC and the
Company, threatened against any of them, before the National Labor
Relations Board, any state or local labor relations board or any
foreign labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company,
the
Target or any of their respective subsidiaries, or, to the
knowledge
of CAIC and the Company, threatened against any of them, (B) no
significant strike, labor dispute, slowdown or stoppage pending
against the Company, the Target or any of their subsidiaries, or to
the knowledge of CAIC and the Company, threatened against any of
them
and (C) to the knowledge of CAIC and the Company, there is no union
representation question existing with respect to the employees of
the
Company, the Target or any of their respective subsidiaries. To the
knowledge of CAIC and the Company, no collective bargaining
organizing
activities are taking place with respect to the Company, the Target
or
any of their respective subsidiaries. Neither the Company, the
Target
or any of their respective subsidiaries has violated (A) any
federal,
state or local law or foreign law relating to discrimination in
hiring, promotion or pay of employees, (B) any applicable wage or
hour
laws or (C) any provision of the Employee Retirement Income
Security
Act of 1974, as amended ("ERISA"), or the rules and regulations
thereunder, except those violations that could not, individually or
in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
13
(xxiii) Except as described in the Preliminary Offering
Memorandum and the Offering Memorandum, neither CAIC, the Company,
the
Target nor any of their respective subsidiaries, has violated, or
is
in violation of, any foreign, federal, state or local law or
regulation relating to the protection of human health and safety,
the
environment or hazardous or toxic substances or wastes, pollutants
or
contaminants (collectively, "ENVIRONMENTAL LAWS"), which violations
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xxiv) There is no alleged liability, or to the knowledge of CAIC
and the Company, potential liability (including, without
limitation,
alleged or potential liability or investigatory costs, cleanup
costs,
governmental response costs, natural resource damages, property
damages, personal injuries or penalties) of CAIC, the Company, the
Target or any of their respective subsidiaries, arising out of,
based
on or resulting from either (A) the presence or release into the
environment of any Hazardous Material (as defined) at any location
of
the Company, the Target or any such subsidiary, as the case may be,
or
(B) any violation or alleged violation of any Environmental Law,
which
alleged or potential liability is required to be disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum, in
either
case, other than as disclosed therein, or could not reasonably be
expected to have a Material Adverse Effect. The term "HAZARDOUS
MATERIAL" means (1) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation, and Liability
Act
of 1980, as amended, (2) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976, as amended, (3) any
petroleum or petroleum product, (4) any polychlorinated biphenyl
and
(5) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within
the
meaning of any other law relating to protection of human health or
the
environment or imposing liability or standards of conduct
concerning
any such chemical material, waste or substance.
(xxv) Each of CAIC, the Company, the Target and their respective
subsidiaries has such permits, licenses, franchises and
authorizations
of governmental or regulatory authorities ("PERMITS"), including,
without limitation, under any applicable Environmental Laws, as are
necessary to lease and operate its respective properties and to
conduct its businesses in accordance with current business plans,
except where the failure to have such permits could not reasonably
be
expected to have a Material Adverse Effect; each of CAIC, the
Company,
the Target and each of their respective 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, termination or modification thereof in either
case,
except where such failure to perform or occurrence of such event
could
not reasonably be expected to have a Material Adverse Effect.
(xxvi) Each of the Company, the Target and their respective
subsidiaries, has peaceful and undisturbed possession under all
material leases to which any of them is a party as lessee and each
of
which lease is valid and binding and no default exists thereunder,
except in each case as could not reasonably be expected to have a
Material Adverse Effect.
(xxvii) Each of the Company, the Target and their respective
subsidiaries owns, possesses or has the right to employ all
patents,
patent rights, licenses, inventions, copyrights, know-how
(including
trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, software, systems or procedures),
trademarks, service marks and trade names, computer programs,
technical data and information
14
(collectively, the "INTELLECTUAL PROPERTY") presently employed by
it
in connection with the businesses now operated by it free and clear
of
and without violating any right, claimed right, charge,
encumbrance,
pledge, security interest, restriction or lien of any kind of any
other person, and neither the Company nor the Target has received
any
written notice of infringement of or conflict with asserted rights
of
others with respect to any of the foregoing, except such
infringements
as could not, individually or in the aggregate, reasonably be
expected
to have a Material Adverse Effect. The use of the Intellectual
Property in connection with the business and operations of the
Company, the Target and their respective subsidiaries does not
infringe on the rights of any person, except such infringements as
could not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.
(xxviii) All federal, state and foreign income and franchise tax
returns required to be filed by CAIC, the Company, the Target or
their
respective subsidiaries in all jurisdictions have been so filed and
are accurate in all material respects. All taxes, including
withholding taxes, penalties and interest, assessments, fees and
other
charges due or claimed to be due from such entities or that are due
and payable have been paid, other than those being contested in
good
faith and for which adequate reserves have been provided in
accordance
with generally accepted accounting principles or those currently
payable without penalty or interest and except where the failure to
make such required filings or payments could not, individually or
in
the aggregate, reasonably be expected to result in a Material
Adverse
Effect. To the knowledge of CAIC, the Company and the Guarantors
there
are no material proposed additional tax assessments against CAIC,
the
Company, the Target or their respective subsidiaries or the assets
or
property of CAIC, the Company, the Target or their respective
subsidiaries, except those tax assessments for which adequate
reserves
have been established.
(xxix) Each of the Company, the Target and their respective
subsidiaries, maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions
are
executed in accordance with management's general or specific
authorizations, (B) transactions are recorded as necessary to
permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (C) access to assets is permitted only in accordance with
management's general or specific authorization and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
thereto.
(xxx) Each of the Company, the Target and their respective
subsidiaries, maintains insurance covering its properties,
operations,
personnel and businesses, insuring against such losses and risks as
are consistent with industry practice, except where failure to
maintain such insurance could not reasonably be expected to have a
Material Adverse Effect. Neither the Company nor the Target has
received written notice from any insurer or agent of such insurer
that
substantial capital improvements or other expenditures will have to
be
made in order to continue such insurance.
(xxxi) Except as described in the Preliminary Offering Memorandum
and the Offering Memorandum, after giving effect to the
Transactions,
no relationship, direct or indirect, exists between or among CAIC,
the
Company, the Target or their respective subsidiaries on the one
hand,
and the directors, officers, stockholders, customers or suppliers
of
CAIC, the Company, the Target or their respective subsidiaries on
the
other hand, that would be required by the Act to be described in
the
Offering Memorandum if
15
the Offering Memorandum were a prospectus included in a
registration
statement on Form S-1 filed with the Commission.
(xxxii) Neither CAIC, nor the Company, nor the Target nor their
respective subsidiaries is, or after giving effect to the
Transactions
and applying the net proceeds as described in the Preliminary
Offering
Memorandum and the Offering Memorandum under the caption "Use of
Proceeds" will be, an "investment company" or a company
"controlled"
by an "investment company" required to be registered under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT").
(xxxiii) There are no holders of securities of the Company, the
Target or their respective subsidiaries who, by reason of the
execution by CAIC, the Company or the Guarantors of this Agreement
or
any other Operative Document to which it is a party, or the
consummation by CAIC, the Company or the Guarantors of the
transactions contemplated hereby and thereby, have the right to
request or demand that CAIC, the Company, the Target or their
respective subsidiaries register under the Act or analogous foreign
laws and regulations securities held by them, other than pursuant
to
the Registration Rights Agreement.
(xxxiv) Neither CAIC, nor the Company, nor the Target nor their
respective subsidiaries has taken, directly or indirectly, any
action
designed to, or that might reasonably be expected to, cause or
result
in stabilization or manipulation of the price of any security of
the
Company, the Target or their respective subsidiaries to facilitate
the
sale or resale of the Notes.
(xxxv) The accountants who have certified or will certify the
financial statements included or to be included as part of the
Offering Memorandum are independent accountants as required by the
Act. Except as described in the Preliminary Offering Memorandum and
the Offering Memorandum, the historical consolidated financial
statements, together with related schedules and notes thereto,
included in the Preliminary Offering Memorandum and the Offering
Memorandum comply as to form in all material respects with the
requirements applicable to financial statements required in
registration statements on Form S-1 under the Act and present
fairly
in all material respects the financial position and results of
operations at the dates and for the periods indicated, except that
such historical consolidated financial statements do not include
selected historical financial data for the 2000 and 2001 fiscal
years.
All such financial statements have been prepared in accordance with
generally accepted accounting principles in the United States
applied
on a consistent basis throughout the periods presented, except as
disclosed therein. The pro forma consolidated financial statements
and
related notes thereto included in the Preliminary Offering
Memorandum
and the Offering Memorandum, have been prepared on a basis
consistent
with that of the historical financial statements, except for the
pro
forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and present fairly in all material
respects
the historical and proposed transactions described in the
Preliminary
Offering Memorandum and the Offering Memorandum, and such pro forma
financial statements comply as to form in all material respects
with
the requirements applicable to pro forma financial statements
included
in registration statements on Form S-1 under the Act, except as
stated
therein and except that pro forma financial statements with respect
to
the twelve months ended September 30, 2005 are not required by
Regulation S-X and except that pro forma financial statements
included
in the Preliminary Offering Memorandum do not reflect the terms of
the
New Senior Credit Facility and the Notes
16
included or directly derived from the information set forth on
Schedule IV(b) hereto. The other financial and statistical
information
and data included in the Preliminary Offering Memorandum and the
Offering Memorandum derived from the historical and pro forma
consolidated financial statements are fairly presented in all
material
respects and prepared on a basis consistent with the historical
consolidated financial statements included in the Preliminary
Offering
Memorandum and the Offering Memorandum and the books and records as
applicable.
(xxxvi) No registration under the Act of the Initial Notes or the
Guarantees thereof is required for the offer, sale and delivery of
the
Initial Notes to the Initial Purchasers as contemplated hereby or
for
the Exempt Resales assuming (A) that the purchasers who buy the
Initial Notes in the Exempt Resales are Eligible Purchasers and (B)
the accuracy of the Initial Purchasers' representations regarding
the
absence of general solicitation in connection with the sale of
Initial
Notes to the Initial Purchasers and the Exempt Resales contained
herein. No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by CAIC, the
Company,
the Guarantors or any of their representatives (other than the
Initial
Purchasers, as to which CAIC, the Company and the Guarantors make
no
representation or warranty) in connection with the offer and sale
of
any of the Initial Notes or the Guarantees thereof or in connection
with Exempt Resales, including, but not limited to, articles,
notices
or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any
seminar
or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same
class
as the Notes or the Guarantees have been issued and sold by CAIC,
the
Company, the Target or their respective subsidiaries within the
six-month period immediately prior to the date hereof.
(xxxvii) The statistical, industry and market-related data
included in the Preliminary Offering Memorandum and the Offering
Memorandum are based on or derived from management estimates and
third-party sources, and CAIC, the Company and the Guarantors
believe
such estimates and sources are reasonable, reliable and accurate in
all material respects.
(xxxviii) Since the respective dates as of which information is
given in the Preliminary Offering Memorandum, (A) there has not
been
any material adverse change, or any development that is reasonably
expected to result in a material adverse change, in the capital
stock
or the long-term debt, or material increase in the short-term debt,
of
CAIC, the Company, the Target or their respective subsidiaries from
that set forth in the Disclosure Package and the Offering
Memorandum,
(B) no dividend or distribution of any kind has been declared, paid
or
made by CAIC, the Company, the Target or their subsidiaries on any
class of its stock, and (C) neither CAIC, nor the Company, nor the
Target nor any of their respective subsidiaries has incurred any
liabilities or obligations, direct or contingent, that are
material,
individually or in the aggregate, to CAIC, the Company, the Target
or
their respective subsidiaries taken as a whole, and that are
required
to be disclosed on a balance sheet or notes thereto in accordance
with
generally accepted accounting principles in the United States and
are
not disclosed on the latest balance sheet or notes thereto included
in
the Offering Memorandum, nor entered into any transaction not in
the
ordinary course of business. Since the date hereof and since the
dates
as of which information is given in the Offering Memorandum, there
has
not occurred any change, or any development that is reasonably
likely
to result in a Material Adverse Effect.
17
(xxxix) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, and each amendment or
supplement
thereto, as of its date, contains the information specified in, and
meets the requirements of, Rule 144A(d)(4) under the Act.
(xl) Prior to the effectiveness of any Registration Statements,
t
