EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
May 5, 2009
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the Initial Purchasers
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Introductory. Silgan Holdings Inc., a
Delaware corporation (the "Company"),
proposes to issue and sell to the several Initial Purchasers named
in Schedule A
(the "Initial Purchasers"), acting severally and not jointly, the
respective
amounts set forth in such Schedule A of $250,000,000 aggregate
principal amount
of the Company's 7 1/4% Senior Notes due 2016 (the "Securities").
Banc of
America Securities LLC, Deutsche Bank Securities Inc. and Morgan
Stanley & Co.
Incorporated have agreed to act as the representatives of the
Initial Purchasers
(the "Representatives") in connection with the offering and sale of
the
Securities (as defined below).
The Securities will be issued pursuant to
an indenture, to be dated as of
May 12, 2009 (the "Indenture"), between the Company and U.S. Bank
National
Association, as trustee (the "Trustee"). Securities will be issued
only in
book-entry form in the name of Cede & Co., as nominee of The
Depository Trust
Company (the "Depositary") pursuant to a blanket letter of
representations, to
be dated on or before the Closing Date (as defined in Section 2
hereof), among
the Company, the Trustee and the Depositary.
The holders of the Securities will be
entitled to the benefits of a
registration rights agreement, to be dated as of May 12, 2009 (the
"Registration
Rights Agreement"), among the Company and the Initial Purchasers,
pursuant to
which the Company may be required to file with the Commission (as
defined
below), under the circumstances set forth therein, (i) a
registration statement
under the Securities Act (as defined below) relating to another
series of debt
securities of the Company with terms substantially identical to the
Securities
(the "Exchange Securities") to be offered in exchange for the
Securities (the
"Exchange Offer") and (ii) a shelf registration statement pursuant
to Rule 415
of the Securities Act relating to the resale by certain holders of
the
Securities, and in each case, to use its best efforts to cause such
registration
statements to be declared effective.
The Company understands that the Initial
Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth
herein and
in the Pricing Disclosure Package and the Final Offering Memorandum
(each as
defined below) and agrees that the Initial Purchasers may resell,
subject to the
conditions set forth herein, all or a portion of the Securities to
purchasers
(the "Subsequent Purchasers") on the terms set forth in the Pricing
Disclosure
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Package (the first time when sales of the Securities are made is
referred to as
the "Time of Sale"). The Securities are to be offered and sold to
or through the
Initial Purchasers without being registered with the Securities and
Exchange
Commission (the "Commission") under the Securities Act of 1933 (as
amended, the
"Securities Act," which term, as used herein, includes the rules
and regulations
of the Commission promulgated thereunder), in reliance upon
exemptions
therefrom. Pursuant to the terms of the Securities and the
Indenture, investors
who acquire Securities shall be deemed to have agreed that
Securities may only
be resold or otherwise transferred, after the date hereof, if such
Securities
are registered for sale under the Securities Act or if an exemption
from the
registration requirements of the Securities Act is available
(including the
exemptions afforded by Rule 144A under the Securities Act ("Rule
144A") or
Regulation S under the Securities Act ("Regulation S").
The Company has prepared and delivered to
each Initial Purchaser copies of
a Preliminary Offering Memorandum, dated May 4, 2009 (the
"Preliminary Offering
Memorandum"), and has prepared and delivered to each Initial
Purchaser copies of
a Pricing Supplement, dated May 5, 2009, attached as Schedule B
hereto (the
"Pricing Supplement"), describing the terms of the Securities, each
for use by
such Initial Purchaser in connection with its solicitation of
offers to purchase
the Securities. The Preliminary Offering Memorandum and the Pricing
Supplement
are herein referred to as the "Pricing Disclosure Package."
Promptly after this
Agreement is executed and delivered, the Company will prepare and
deliver to
each Initial Purchaser a final offering memorandum dated the date
hereof (the
"Final Offering Memorandum").
All references herein to the terms
"Pricing Disclosure Package" and "Final
Offering Memorandum" shall be deemed to mean and include all
information filed
under the Securities Exchange Act of 1934 (as amended, the
"Exchange Act," which
term, as used herein, includes the rules and regulations of the
Commission
promulgated thereunder) prior to the Time of Sale and incorporated
by reference
in the Pricing Disclosure Package (including the Preliminary
Offering
Memorandum) or the Final Offering Memorandum (as the case may be),
and all
references herein to the terms "amend," "amendment" or "supplement"
with respect
to the Final Offering Memorandum shall be deemed to mean and
include all
information filed under the Exchange Act after the Time of Sale and
incorporated
by reference in the Final Offering Memorandum.
The Company hereby confirms its agreements
with the Initial Purchasers as
follows:
Section 1.
Representations and Warranties. The Company
hereby
represents, warrants and covenants to each Initial Purchaser that,
as of the
date hereof and as of the Closing Date (references in this Section
1 to the
"Offering Memorandum" are to (x) the Pricing Disclosure Package in
the case of
representations and warranties made as of the date hereof and (y)
the Final
Offering Memorandum in the case of representations and warranties
made as of the
Closing Date):
(a) No
Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in
Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not
necessary in
connection with the offer, sale and delivery of the Securities to
the Initial
Purchasers and the initial resale by the Initial Purchasers of the
Securities
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to each Subsequent Purchaser in the manner contemplated by this
Agreement and
the Offering Memorandum to register the Securities under the
Securities Act or,
until such time as the Exchange Securities are issued pursuant to
an effective
registration statement, to qualify the Indenture under the Trust
Indenture Act
of 1939 (the "Trust Indenture Act," which term, as used herein,
includes the
rules and regulations of the Commission promulgated
thereunder).
(b) No Integration
of Offerings or General Solicitation. None of the
Company, to the knowledge of the Company, its affiliates (as such
term is
defined in Rule 501 under the Securities Act) (each, an
"Affiliate"), or any
person acting on its or any of their behalf (other than the Initial
Purchasers,
as to whom the Company makes no representation or warranty) has,
directly or
indirectly, solicited any offer to buy or offered to sell, or will,
directly or
indirectly, solicit any offer to buy or offer to sell, in the
United States or
to any United States citizen or resident, any security which is or
would be
integrated with the sale of the Securities in a manner that would
require the
Securities to be registered under the Securities Act. None of the
Company, its
Affiliates, or any person acting on its or any of their behalf
(other than the
Initial Purchasers, as to whom the Company makes no representation
or warranty)
has engaged or will engage, in connection with the offering of the
Securities,
in any form of general solicitation or general advertising within
the meaning of
Rule 502 under the Securities Act. With respect to those Securities
sold in
reliance upon Regulation S, (i) none of the Company, its Affiliates
or any
person acting on its or their behalf (other than the Initial
Purchasers, as to
whom the Company makes no representation or warranty) has engaged
or will engage
in any directed selling efforts within the meaning of Regulation S
and (ii) each
of the Company and its Affiliates and any person acting on its or
their behalf
(other than the Initial Purchasers, as to whom the Company makes
no
representation or warranty) has complied and will comply with the
offering
restrictions set forth in Regulation S.
(c) Eligibility
for Resale under Rule 144A. The Securities are eligible
for resale pursuant to Rule 144A and will not be, at the Closing
Date, of the
same class as securities listed on a national securities exchange
registered
under Section 6 of the Exchange Act or quoted in a U.S. automated
interdealer
quotation system.
(d) The Pricing
Disclosure Package and Offering Memorandum. Neither the
Pricing Disclosure Package, as of the Time of Sale, nor the Final
Offering
Memorandum, as of its date or (as amended or supplemented in
accordance with
Section 3(a), as applicable) as of the Closing Date, contains or
represents an
untrue statement of a material fact or omits to state a material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading; provided that this
representation,
warranty and agreement shall not apply to statements in or
omissions from the
Pricing Disclosure Package, the Final Offering Memorandum or any
amendment or
supplement thereto made in reliance upon and in conformity with
information
furnished to the Company in writing by any Initial Purchaser
through the
Representatives expressly for use in the Pricing Disclosure
Package, the Final
Offering Memorandum or amendment or supplement thereto, as the case
may be. The
Company has not distributed and will not distribute, prior to the
later of the
Closing Date and the completion of the Initial Purchasers'
distribution of the
Securities, any offering material in connection with the offering
and sale of
the Securities other than the Pricing Disclosure Package and the
Final Offering
Memorandum.
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(e) Company
Additional Written Communications. The Company has not
prepared, made, used, authorized, approved or distributed and will
not prepare,
make, use, authorize, approve or distribute any written
communication that
constitutes an offer to sell or solicitation of an offer to buy the
Securities
(each such communication by the Company or its agents and
representatives (other
than a communication referred to in clauses (i) and (ii) below) a
"Company
Additional Written Communication") other than (i) the Pricing
Disclosure
Package, (ii) the Final Offering Memorandum, and (iii) any
electronic road show
or other written communications, in each case used in accordance
with Section
3(a). Each such Company Additional Written Communication, when
taken together
with the Pricing Disclosure Package, did not, and at the Closing
Date will not,
contain any untrue statement of a material fact or omit to state a
material fact
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided
that this
representation, warranty and agreement shall not apply to
statements in or
omissions from each such Company Additional Written Communication
made in
reliance upon and in conformity with information furnished to the
Company in
writing by any Initial Purchaser through the Representatives
expressly for use
in any Company Additional Written Communication.
(f) Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time
they were or
hereafter are filed with the Commission complied and will comply in
all material
respects with the requirements of the Exchange Act.
(g) The Purchase
Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of,
the Company,
enforceable in accordance with its terms, except as rights to
indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by
general equitable principles.
(h) The
Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized and, on the Closing Date, will
have been duly
executed and delivered by, and will constitute a valid and binding
agreement of,
the Company, enforceable in accordance with its terms, except as
the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors
or by general equitable principles and except as rights to
indemnification under
the Registration Rights Agreement may be limited by applicable
law.
(i) Authorization
of the Securities. The Securities have been duly
authorized and, when executed and authenticated in accordance with
the
provisions of the Indenture and delivered to and paid for by the
Initial
Purchasers in accordance with the terms of this Agreement, will be
valid and
binding obligations of the Company, enforceable in accordance with
their terms,
subject to the effects of applicable bankruptcy, insolvency and
similar laws
affecting creditors' rights generally and equitable principles of
general
applicability, and will be entitled to the benefits of the
Indenture pursuant to
which such Securities are to be issued, and the Registration Rights
Agreement.
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(j) Authorization
of the Indenture. The Indenture has been duly
authorized by the Company and, at the Closing Date, will have been
duly executed
and delivered by the Company and will constitute a valid and
binding agreement
of the Company, enforceable against the Company in accordance with
its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the
rights and remedies of creditors or by general equitable
principles.
(k) Description of
the Securities and the Indenture. The Securities and
the Indenture will conform in all material respects to the
respective statements
relating thereto contained in the Offering Memorandum.
(l) No Material
Adverse Change. Since the filing date of the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2009, there
has not been any material adverse change or any development
involving a
prospective material adverse change in or affecting the earnings,
business,
properties, assets, operations, condition (financial or otherwise),
or prospects
of the Company and its Subsidiaries taken as a whole, whether or
not occurring
in the ordinary course of business (any such change is called a
"Material
Adverse Change"). The Company and its Subsidiaries have no material
contingent
obligations which are not disclosed in the Company's financial
statements which
are included or incorporated by reference in the Offering
Memorandum.
(m) Independent
Accountants. Ernst & Young LLP, which expressed its
opinion with respect to the financial statements (which term
includes the
related schedule and notes thereto) filed with the Commission as
part of, or
incorporated by reference in, the Offering Memorandum, are
independent public
accountants as required by the Securities Act.
(n) Preparation of
the Financial Statements. The consolidated financial
statements of the Company and the Subsidiaries, together with the
related
schedule and notes, as set forth or incorporated by reference in
the Offering
Memorandum present fairly in all material respects the consolidated
financial
position and the results of operations and cash flows of the
Company and the
Subsidiaries, at the indicated dates and for the indicated periods.
Such
financial statements have been prepared in conformity with
accounting principles
generally accepted in the United States, consistently applied
throughout the
periods involved, except as disclosed therein, and all adjustments
necessary for
a fair presentation in all material respects of results for such
periods have
been made. The summary financial data included in the Offering
Memorandum has
been compiled on a basis consistent with the financial statements
included in
the Offering Memorandum, except as otherwise indicated, and the
books and
records of the Company. The statistical data included or
incorporated by
reference in the Offering Memorandum has been compiled on a basis
consistent
with the books and records of the Company.
(o) Incorporation
and Good Standing of the Company and its
Subsidiaries. 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
corporate power and authority to own or lease its properties and
conduct its
business as described in the Offering Memorandum. Each of the
subsidiaries of
the Company as listed in Exhibit A hereto (collectively, the
"Subsidiaries") has
been duly organized and is validly existing as a corporation or
limited
liability company in good standing under the laws of the
jurisdiction of its
organization, with corporate or limited liability
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company power and authority to own or lease its properties and
conduct its
business as described in the Offering Memorandum. There are no
subsidiaries,
direct or indirect, of the Company that are "significant
subsidiaries" as
defined in Rule 1-02 (w) of Regulation S-X, other than as set forth
on Exhibit A
hereto. The Company and each of the Subsidiaries are duly qualified
to transact
business and are in good standing in all jurisdictions in which the
conduct of
their business or ownership or leasing of property requires such
qualification
except as could not be reasonably be expected to result in a
Material Adverse
Change. The outstanding shares of capital stock or membership
interests of each
of the Subsidiaries have been duly authorized and validly issued
and are fully
paid and non-assessable. The outstanding shares of capital stock or
membership
interests of each of the Subsidiaries are owned by the Company or
another
subsidiary of the Company free and clear of all liens, encumbrances
and equities
and claims, other than (a) the pledges of such capital stock or
membership
interests existing on the date hereof made in connection with (A)
the Credit
Agreement, dated as of June 30, 2005, as amended, among the
Company, Silgan
Containers LLC, Silgan Plastics LLC, Silgan Containers
Manufacturing
Corporation, Silgan Can Company, Silgan White Cap LLC, Silgan
Plastics Canada
Inc., 827599 Ontario Inc., the lenders party to the Credit
Agreement from time
to time and Deutsche Bank AG New York Branch, as Administrative
Agent (the
"Credit Agreement"); (B) the US Pledge Agreement, dated as of June
30, 2005, as
amended, among the Company, Silgan Containers LLC, Silgan Plastics
LLC, Silgan
Containers Manufacturing Corporation, Silgan Can Company, Silgan
Corporation,
Silgan White Cap LLC, Silgan LLC, Silgan Can Holding Company,
Silgan Plastics
Corporation, Silgan Tubes Holding Company, Silgan White Cap
Corporation, Silgan
White Cap Americas LLC, Silgan Closures International Holding
Company, Silgan
Equipment Company, and Deutsche Bank AG New York Branch, as
collateral agent,
and (C) the Campbell Can Acquisition Documents (as such term is
defined in the
Credit Agreement) and (b) the contractual right of Campbell Soup
Company or any
affiliate thereof to purchase the capital stock of Silgan Can
Company or any of
the assets of Silgan Can Company (other than inventory in the
ordinary course of
business in accordance with the supply arrangements).
(p)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any
of the
Subsidiaries is or with the giving of notice or lapse of time or
both, will be,
in violation of or in default under (i) its Certificate of
Incorporation or
By-Laws, (ii) any agreement, lease, contract, indenture or other
instrument or
obligation to which it is a party or by which it, or any of its
properties, is
bound and, solely with respect to this clause (ii), which violation
or default
could reasonably be expected to result in a Material Adverse
Change. The
execution and delivery by the Company of, and the performance by
the Company of
its obligations under, this Agreement, the Indenture, the
Registration Rights
Agreement, the Securities will not contravene any provision of
applicable law or
the Amended and Restated Certificate of Incorporation or the
Amended and
Restated By-Laws of the Company, as amended, or any agreement or
other
instrument binding upon the Company or any of the 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
for the
performance by the Company of its obligations under this Agreement,
the
Indenture, the Registration Rights Agreement or the Securities,
except (1) such
as may have been obtained, (2) as may be required by applicable
federal or state
securities laws, and (3) qualification of the Indenture under the
Trust
Indenture Act.
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(q) No Material
Actions or Proceedings. Other than as described in the
Offering Memorandum, there is no action, suit, claim or proceeding
pending or,
to the knowledge of the Company, threatened against the Company or
any of the
Subsidiaries or any of their properties before any court or
administrative
agency or otherwise which if determined adversely to the Company or
any of the
Subsidiaries might result in a Material Adverse Change or prevent
the Company
from performing its obligations under this Agreement, the
Indenture, the
Registration Rights Agreement or the Securities or the consummation
of the
transactions contemplated by the Offering Memorandum.
(r) All Necessary
Permits, etc. The Company and each of the
Subsidiaries hold all material licenses, certificates and permits
from
governmental authorities which are necessary to the conduct of
their businesses,
except where the failure to hold any such license, certificate or
permit would
not result in a Material Adverse Change.
(s) Company Not an
"Investment Company". The Company is not, and after
giving effect to the offering and sale of the Securities and the
application of
the proceeds thereof as described in the Offering Memorandum, will
not be,
required to register as an "investment company" as such term is
defined in the
Investment Company Act of 1940, as amended.
(t) Compliance
with Sarbanes-Oxley. The Company and its subsidiaries
and, to the Company's knowledge, their respective officers and
directors are in
compliance in all material respects with the applicable provisions
of the
Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act," which term,
as used
herein, includes the rules and regulations of the Commission
promulgated
thereunder).
(u) Company's
Accounting System. The Company and each of its
Subsidiaries maintains a system of internal accounting controls
sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance
with management's general or specific authorization; (ii)
transactions are
recorded as necessary to permit preparation of financial statements
in
conformity with accounting principles generally accepted in the
U.S.; and (iii)
the recorded accountability for assets is compared with existing
assets at
reasonable intervals and appropriate action is taken with respect
to any
differences.
(v) Disclosure
Controls and Procedures. The Company's Chief Executive
Officer and Chief Financial Officer are responsible for
establishing and
maintaining disclosure controls and procedures (as such term is
defined in Rule
13a-15(e) under the Exchange Act), for the Company and they have
(i) designed
such disclosure controls and procedures, or caused such disclosure
controls and
procedures to be designed under their supervision, to ensure that
material
information relating to the Company, including its consolidated
subsidiaries, is
made known to them by others within those entities, particularly
during periods
in which the periodic reports required under the Exchange Act are
being
prepared, (ii) evaluated the effectiveness of such disclosure
controls and
procedures as of the end of the period covered by the Company's
most recent
Quarterly Report on Form 10-Q filed with the Commission, and (iii)
concluded
that the disclosure controls and procedures are effective in
ensuring that all
material information required to be disclosed in the Company's most
recent
Quarterly Report on Form 10-Q filed with the Commission was made
known to them
in a timely fashion. Since the most recent evaluation of the
Company's
disclosure controls and procedures described above, there have been
no changes
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in internal control over financial reporting that have materially
affected, or
are reasonably likely to materially affect, the Company's internal
control over
financial reporting.
(w) Compliance
with Environmental Laws. Except as disclosed in the
Offering Memorandum, 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 could not, singly or in the aggregate,
reasonably be
expected to result in a Material Adverse Change.
(x) Costs of
Environmental Compliance. There are no costs or
liabilities associated with Environmental Laws (including, without
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 could, singly or in the
aggregate,
reasonably be expected to result in a Material Adverse Change.
(y) No Unlawful
Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the best of the Company's
knowledge, any
employee or agent of the Company or any subsidiary, has made any
contribution or
other payment to any official of, or candidate for, any federal,
state or
foreign office in violation of any law other than any such
violation that would
not, individually or in the aggregate, result in a Material Adverse
Change.
(z) No Conflict
with Money Laundering Laws. The operations of the
Company and its subsidiaries are and have been conducted at all
times in
compliance with applicable financial recordkeeping and reporting
requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the
money laundering statutes of all applicable jurisdictions, the
rules and
regulations thereunder and any related or similar rules,
regulations or
guidelines issued, administered or enforced by any governmental
agency
(collectively, the "Money Laundering Laws") and no action, suit or
proceeding by
or before any court or governmental agency, authority or body or
any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(aa) No Conflict with
OFAC Laws. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company
will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner
or other person or entity, for the purpose of financing the
activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
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(bb) Regulation S. The
Company and its affiliates and all persons acting
on their behalf (other than the Initial Purchasers, as to whom the
Company makes
no representation) have complied with and will comply with the
offering
restrictions requirements of Regulation S in connection with the
offering of the
Securities outside the United States and, in connection therewith,
the Offering
Memorandum will contain the disclosure required by Rule 902. The
Securities sold
in reliance on Regulation S will be represented upon issuance by a
temporary
global security that may not be exchanged for definitive securities
until the
expiration of the 40-day restricted period referred to in Rule 903
of the
Securities Act and only upon certification of beneficial ownership
of such
Securities by non-U.S. persons or U.S. persons who purchased such
Securities in
transactions that were exempt from the registration requirements of
the
Securities Act.
Any certificate signed by an officer of
the Company and delivered to the
Initial Purchasers or to counsel for the Initial Purchasers shall
be deemed to
be a representation and warranty by the Company to each Initial
Purchaser as to
the matters set forth therein.
Section 2. Purchase,
Sale and Delivery of the Securities.
(a) The
Securities. The Company agrees to issue and sell to the Initial
Purchasers, severally and not jointly, all of the Securities, and
the Initial
Purchasers agree, severally and not jointly, to purchase from the
Company the
aggregate principal amount of Securities set forth opposite their
names on
Schedule A, at a purchase price of 95.655% of the principal amount
thereof
payable on the Closing Date, in each case, on the basis of the
representations,
warranties and agreements herein contained, and upon the terms,
subject to the
conditions thereto, herein set forth.
(b) The Closing
Date. Delivery of certificates for the Securities in
definitive form to be purchased by the Initial Purchasers and
payment therefor
shall be made at the offices of Shearman & Sterling LLP, 599
Lexington Avenue,
New York, New York 10022 (or such other place as may be agreed to
by the Company
and the Representatives) at 9:00 a.m. New York City time, on May
12, 2009, or
such other time and date as the Representatives shall designate by
notice to the
Company (the time and date of such closing are called the "Closing
Date").
(c) Delivery of
the Securities. The Company shall deliver, or cause to
be delivered, to the Representatives for the accounts of the
several Initial
Purchasers certificates for the Securities at the Closing Date
against the
irrevocable release of a wire transfer of immediately available
funds for the
amount of the purchase price therefor. The certificates for the
Securities shall
be in such denominations and registered in the name of Cede &
Co., as nominee of
the Depositary, and shall be made available for inspection on the
