PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "AGREEMENT"), dated as of October 24,
2001, is entered into by and between FLEETWOOD ENTERPRISES, INC., a Delaware
corporation with offices at 3125 Myers Street, Riverside, CA 92503 (the
"COMPANY"), and ACQUA WELLINGTON PRIVATE PLACEMENT FUND, LTD., a company
organized under the laws of the Commonwealth of the Bahamas, with offices c/o
Fortis Fund Services (Bahamas) Ltd., Montague Sterling Centre, East Bay
Street, P. O. Box SS-6238, Nassau, Bahamas (the "PURCHASER"), for the
purchase and sale of shares of the common stock, par value $1.00 per share
(the "COMMON STOCK"), of the Company by the Purchaser, in the manner, and
upon the terms, provisions and conditions set forth in this Agreement.
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the
Purchaser and Purchaser shall purchase shares of the Common Stock; and
WHEREAS, such purchase and sale will be made in reliance upon the
provisions of Section 4(2) and Rule 506 of Regulation D ("REGULATION D") of
the United States Securities Act of 1933, as amended and regulations
promulgated thereunder (the "SECURITIES ACT"), and/or upon such other
exemption(s) from the registration requirements of the Securities Act as may
be available with respect to any or all of the purchases of Common Stock to
be made hereunder.
NOW, THEREFORE, in consideration of the representations, warranties
and agreements contained herein and other good and valuable consideration,
the receipt and legal adequacy of which is hereby acknowledged by the
parties, the Company and the Purchaser hereby agree as follows:
1. PURCHASE PRICE.
(a) Upon the following terms and subject to the conditions
contained herein, the Purchaser hereby agrees to purchase 2,209,945 shares of
the Company's Common Stock (the "SHARES") at a per share price of $9.05 and
for an aggregate purchase price of $20,000,000 (the "PURCHASE PRICE").
(b) The Company has authorized and has reserved and
covenants to continue to reserve, free of preemptive rights and other similar
contractual rights of stockholders, a sufficient number of its authorized but
unissued shares of its Common Stock, to effect the issuance of the Shares.
(c) The closing (the "CLOSING") under this Agreement shall
take place at the offices of the Jenkens & Gilchrist Parker Chapin LLP, The
Chrysler Building, 405 Lexington Avenue, New York, New York 10174 at 1:00
p.m. (eastern time) upon the satisfaction of each of the conditions set forth
in Section 4 hereof (the "CLOSING DATE").
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(d) The Company shall deliver to the Purchaser on or prior
to the Closing Date a certificate representing the Shares. Upon receipt of
the certificate representing the Shares, the Purchaser shall pay the Purchase
Price therefor by check, wire transfer or such other form of payment as shall
be mutually agreed upon by the Company and the Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
The Purchaser represents and warrants to the Company, and covenants for the
benefit of the Company, as follows:
(a) This Agreement has been duly authorized, validly
executed and delivered by the Purchaser and is a valid and binding agreement
and obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, subject to limitations on enforcement by general
principles of equity and by bankruptcy or other laws affecting the
enforcement of creditors' rights generally, and the Purchaser has full power
and authority to execute and deliver this Agreement and the other agreements
and documents contemplated hereby and to perform its obligations as provided
hereunder and thereunder.
(b) The Purchaser has received and carefully reviewed
copies of the Public Documents (as hereinafter defined) and has access to the
Commission Documents (as hereinafter defined). The Purchaser understands that
no federal, state, local or foreign governmental body or regulatory authority
has made any finding or determination relating to the fairness of an
investment in any of the Shares and that no federal, state, local or foreign
governmental body or regulatory authority has recommended or endorsed, or
will recommend or endorse, any investment in any of the Shares. The
Purchaser, in making the decision to purchase the Shares, has relied upon
independent investigation made by it and its advisors, if any, and has not
relied on any information or representations made by third parties or by the
Company or its officers, directors, employees, agents, accountants or
attorneys. The Purchaser and its advisors, if any, have been furnished with
all materials relating to the business, finances and operations of the
Company and materials relating to the business, finances and operations of
the Company and materials relating to the offer and sale of the Shares which
have been requested by the Purchaser. The Purchaser and its advisors, if any,
have been afforded the opportunity to ask questions of the Company. The
Purchaser has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to
its acquisition of the Shares. The Purchaser understands that it (and not the
Company) shall be responsible for its own tax liabilities that may arise as a
result of this investment or the transactions contemplated by this Agreement.
(c) The Purchaser understands that the Shares are being
offered and sold to it in reliance on specific provisions of federal and
state securities laws and that the Company is relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein for purposes of qualifying
for exemptions from registration under the Securities Act, and applicable
state securities laws.
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(d) The Purchaser is, and at all times relevant to the
offer to sell the Shares was, an "accredited investor" as defined under Rule
501 of Regulation D promulgated under the Securities Act.
(e) The Purchaser is and will be acquiring the Shares for
such Purchaser's own account, for investment, and not with a view to any
resale or distribution of the Shares in whole or in part, in violation of the
Securities Act or any applicable securities laws.
(f) The offer and sale of the Shares is intended to be
exempt from registration under the Securities Act, by virtue of Section 4(2)
and Regulation D promulgated under the Securities Act. The Purchaser
understands that the Shares purchased hereunder have not been, and may never
be, registered under the Securities Act and that none of the Shares can be
sold or transferred unless they are first registered under the Securities Act
and such state and other securities laws as may be applicable or, in the
opinion of counsel for the Company, an exemption from registration under the
Securities Act is available (and then the Shares may be sold or transferred
only in compliance with such exemption and all applicable state and other
securities laws to the reasonable satisfaction of counsel for the Company).
The Purchaser will not sell any of the Shares in violation of this Section
2(f).
(g) The Purchaser (i) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Company; and (ii) recognizes that such
Purchaser's investment in the Company involves a high degree of risk.
(h) The Purchaser is capable of evaluating the risks and
merits of an investment in the Shares by virtue of its experience as an
investor and its knowledge, experience, and sophistication in financial and
business matters and such Purchaser is capable of bearing the entire loss of
its investment in the Shares.
(i) The Purchaser is neither a registered broker-dealer nor
an affiliate of a registered broker-dealer.
(j) Neither the Purchaser nor any of its affiliates,
officers or agents will solicit any material non-public information from the
Company.
(k) The Purchaser has no agreement or arrangement with the
Company or with any third party for the sale or disposition of the Common
Stock to be purchased pursuant to this Agreement.
(l) The Purchaser covenants with the Company as follows:
The Purchaser's trading and distribution activities with respect to the
Shares will be in compliance with all applicable state and federal securities
laws, rules and regulations (including, without limitation, regulation M
promulgated under the Securities Act) and the rules and regulations of the
New York Stock Exchange. Neither the Purchaser nor any of its affiliates (as
that term is defined in Rule 405 promulgated under the Securities Act) has
taken, nor will any of them take, directly or
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indirectly, any action designed to cause or that would result in, or which
constitutes or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to facilitate
the purchase, sale or resale of the Common Stock or the Shares.
(m) The Purchaser is a company duly organized, validly
existing and in good standing under the laws of the Commonwealth of the
Bahamas.
(n) The execution and delivery of this Agreement and the
Registration Rights Agreement, the acquisition of any of the Shares and the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement by the Purchaser, will not (i) conflict with or
result in a breach of or a default under any of the terms or provisions of
Purchaser's organizational documents, or (ii) result in a violation of any
material provision of any law, statute, rule, regulation, or any existing
applicable decree, judgment or order by any court, federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Purchaser.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to the Purchaser, and covenants for the
benefit of the Purchaser, as of the date of this Agreement, that except as
set forth in the disclosure schedule of even date hereof delivered to
Purchaser by the Company (the "DISCLOSURE SCHEDULE"), which exceptions shall
be deemed to be a part of and to qualify the representations and warranties
to which they refer as if made hereunder:
(a) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the state of Delaware, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as currently conducted, and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure to register or qualify would not have a Material Adverse Effect. For
purposes of this Agreement, "Material Adverse Effect" shall mean any effect
on the business, prospects, operations, properties or financial condition of
the Company that is material and adverse to the Company and its subsidiaries,
taken as a whole.
(b) The Company has furnished the Purchaser with copies of
the Company's most recent Annual Report on Form 10-K for fiscal year ended
April 29, 2001 (the "FORM 10-K") filed with the Securities and Exchange
Commission (the "COMMISSION") and its Form 10-Q for the quarterly period
ended July 29, 2001 (the "FORM 10-Q"; collectively with the Form 10-K, the
"PUBLIC DOCUMENTS"). The Public Documents at the time of their filing did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading. As used herein,
"Commission Documents" means all reports, schedules, forms, statements and
other documents filed by the Company with the Commission pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), including material filed pursuant to Section 13(a) or
15(d) of the Exchange Act.
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(c) The Shares have been duly authorized by all necessary
corporate action and, when paid for by the Purchaser and issued in accordance
with the terms hereof, the Shares shall be validly issued, will be fully paid
and non-assessable.
(d) Each of this Agreement and the Registration Rights
Agreement attached hereto as Exhibit A (the "REGISTRATION RIGHTS AGREEMENT")
has been duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding agreement and obligation of the Company
enforceable against the Company in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy
or other laws affecting the enforcement of creditors' rights generally, and
the Company has full power and authority to execute and deliver this
Agreement and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
(e) The execution and delivery of this Agreement and the
Registration Rights Agreement, the issuance of any of the Shares and the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement by the Company, will not (i) conflict with or
result in a breach of or a default under any of the terms or provisions of,
(A) the Company's certificate of incorporation or by-laws, or (B) of any
provision of any material indenture, mortgage, deed of trust or other
material agreement or instrument to which the Company is a party or by which
it or any of its material properties or assets is bound, (ii) result in a
violation of any material provision of any law, statute, rule, regulation, or
any existing applicable decree, judgment or order by any court, federal or
state regulatory body, administrative agency, or other governmental body
having jurisdiction over the Company, or any of its material properties or
assets or (iii) result in the creation or imposition of any material lien,
charge or encumbrance upon any material property or assets of the Company or
any of its subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to
which any of their property or any of them is subject except in the case of
clauses (i)(B) or (iii) for any such conflicts, breaches, or defaults or any
liens, charges, or encumbrances which would not have a Material Adverse
Effect.
(f) The sale and issuance of the Shares in accordance with
the terms and on the basis of the representations and warranties set forth in
this Agreement will be exempt from the registration requirements of the
Securities Act.
(g) No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of this Agreement or the offer, sale or issuance of the Shares or
the consummation of any other transaction contemplated by this Agreement
(other than any filings which may be required to be made by the Company with
the Commission, or New York Stock Exchange or pursuant to any state or "blue
sky" securities laws, and, any registration statement which have been made or
may be filed pursuant to this Agreement).
(h) There is no action, suit, claim or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending
against or affecting the Company, or any of its properties, which questions
the validity of this Agreement,
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the Registration Rights Agreement or the transactions contemplated thereby or
any action taken or to be take pursuant thereto. Except as described in the
Public Documents, there is no action, suit, claim or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending
against or affecting the Company, or any of its properties, which, if
adversely determined, is reasonably likely to result in a Material Adverse
Effect.
(i) Subsequent to the dates as of which information is
given in the Public Documents, except as contemplated herein, the Company has
not incurred any material liabilities or material obligations, direct or
contingent, or entered into any material transactions not in the ordinary
course of business.
(j) The Company has sufficient title and ownership of all
trademarks, service marks, trade names, copyrights, patents, trade secrets
and other proprietary rights ("INTELLECTUAL PROPERTY") necessary for its
business as now conducted and as proposed to be conducted as described in the
Public Documents or the Commission Documents, except for any of such
Intellectual Property, the absence of which would not reasonably be likely to
result in a Material Adverse Effect, and to its knowledge without any
conflict with or infringement of the rights of others. Except as set forth in
the Public Documents, Commission Documents or on Schedule 3(j) of the
Disclosure Schedule, there are no material outstanding options, licenses or
agreements of any kind relating to the Intellectual Property, nor is the
Company bound by or party to any material options, licenses or agreements of
any kind with respect to the Intellectual Property of any other person or
entity.
(k) The Company has complied and will comply with all
applicable federal and state securities laws in connection with the offer,
issuance and sale of the Shares hereunder. Neither the Company nor anyone
acting on its behalf, directly or indirectly, has or will sell, offer to sell
or solicit offers to buy any of the Shares or solicit offers with respect
thereto from, or enter into any preliminary conversations or negotiations
relating thereto with, any person, or has taken or will take any action so as
to bring the issuance and sale of any of the Shares under the registration
provisions of the Securities Act and any other applicable federal and state
securities laws. Neither the Company nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with any of the Shares.
(l) None of this Agreement, the Disclosure Schedule or the
Registration Rights Agreement contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements made herein or therein, in the light of the circumstances under
which they were made herein or therein, not misleading.
(m) The authorized capital stock of the Company and the
shares thereof issued and outstanding as of October 22, 2001 are set forth on
SCHEDULE 3(M) of the Disclosure Schedule. All of the outstanding shares of
the Company's Common Stock have been duly and validly authorized, and are
fully paid and non-assessable. Except as set forth in this Agreement, the
Public Documents, the Commission Documents or on SCHEDULE 3(M) of the
Disclosure Schedule, as of October 22, 2001, no shares of Common Stock are
entitled to preemptive rights
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or registration rights and there are no outstanding options, warrants, scrip,
rights to subscribe to, call or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company. Furthermore, except as set forth in this Agreement, in
the Public Documents, the Commission Documents or on SCHEDULE 3(M) of the
Disclosure Schedule, as of the date hereof, there are no contracts,
commitments, understandings, or arrangements by which the Company is or may
become bound to issue additional shares of the capital stock of the Company
or options, securities or rights convertible into shares of capital stock of
the Company. Except as disclosed in the Commission Documents or on SCHEDULE
3(M) of the Disclosure Schedule, and except for customary transfer
restrictions contained in agreements entered into by the Company in order to
sell restricted securities, as of the date hereof, the Company is not a party
to any agreement granting registration rights to any person with respect to
any of its equity or debt securities. The Company is not a party to, and it
has no knowledge of, any agreement restricting the voting or transfer of any
shares of the capital stock of the Company. The offer and sale of all capital
stock, convertible securities, rights, warrants, or options of the Company
issued prior to the Closing complied in all material respects with all
applicable federal and state securities laws, and no stockholder has a right
of rescission or damages with respect thereto which is reasonably likely to
have a Material Adverse Effect. The Company has furnished or made available
to the Purchaser true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof (the "CERTIFICATE"), and the
Company's Bylaws as in effect on the date hereof (the "BYLAWS").
(n) Prior to the effectiveness of the Registration
Statement (as defined in the Registration Rights Agreement), the Company will
use all reasonable commercial best efforts to list the Shares for trading on
the New York Stock Exchange or any relevant market or system on which the
Shares are listed or quoted, if applicable, and will comply in all material
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of the New York Stock Exchange or any relevant market or
system.
(o) The Company may not issue a press release or otherwise
make a public statement or announcement with respect to the transaction
contemplated hereby prior to the Closing Date without the consent of the
Purchaser, which consent shall not be unreasonably withheld, delayed or
conditioned. In the event that the Company is required by law or regulations
to issue a press release or otherwise make a public statement or announcement
with respect to this Agreement prior to or after the Closing Date, the
Company shall reasonably consult with the Purchaser on the form and substance
of such press release or other disclosure.
(p) The Company may enter into an agreement with a third
party before the effectiveness of the registration statement covering the
Shares, the principal purpose of which is to secure equity financing (an
"OTHER FINANCING"), provided the price per share paid for the financing is
greater than the Purchaser's average purchase price. If the Company enters
into an Other Financing at a price per share less than the Purchaser's
average purchase price, the Company will issue additional shares to the
Purchaser based on standard "weighted average" anti-dilution formula (the
"ANTI-DILUTION SHARES"). If issued, the Anti-Dilution Shares shall be
registered in a separate registration statement.
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(q) Neither the Company nor any of its officers or agents
shall disclose any material non-public information about the Company to the
Purchaser.
4. CONDITIONS PRECEDENT: The obligations hereunder of both the
Company and the Purchaser to enter into this Agreement are subject to their
satisfaction or waiver, at or before the Closing, of each of the conditions
set forth below. These conditions are for the Company's and the Purchaser's
sole benefit respectively, and they may waive their own rights at any time in
their sole discretion.
(a) The parties shall have executed and delivered this
Agreement and the Registration Rights Agreement.
(b) The Company shall have delivered certificates
evidencing the Shares to the Purchaser.
(c) Upon receipt of the certificates evidencing the Shares,
the Purchaser shall have delivered to the Company immediately available funds
as payment in full of the Purchase Price for the Shares.
(d) The Purchaser shall have received a legal opinion in
substantially the form annexed hereto as Exhibit A.
5. LEGENDS. Unless otherwise provided below, each certificate
representing the Shares shall be stamped or otherwise imprinted with a legend
substantially in the following form (the "LEGEND"):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR FLEETWOOD
ENTERPRISES, INC. (THE "COMPANY") SHALL HAVE RECEIVED AN
OPINION, IN FORM, SCOPE AND SUBSTANCE REASONABLY ACCEPTABLE TO
THE COMPANY, OF COUNSEL WHO IS REASONABLY ACCEPTABLE TO THE
COMPANY THAT REGISTRATION OF SUCH SECURITIES UNDER THE
SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE FEDERAL
AND STATE SECURITIES LAWS IS NOT REQUIRED."
6. FEES AND EXPENSES. Each of the Company and the Purchaser shall
pay its respective fees and expenses related to the transactions contemplated
by this Agreement and the Registration Rights Agreement; except that the
Company shall pay on the Closing Date, all
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reasonable legal fees and expenses, exclusive of disbursements and
out-of-pocket expenses, incurred by the Purchaser of up to $25,000 in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the Registration Rights Agreement.
7. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold
harmless the Purchaser and its officers, directors, shareholders, employees,
agents, accountants and attorneys against any and all losses, claims,
damages, liabilities and reasonable expenses incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person, to which any such
indemnified party may become subject, insofar as such losses, claims,
demands, liabilities and expenses arise out of or are based upon any breach
of any representation or warranty made by the Company in this Agreement.
(b) The Purchaser hereby agrees to indemnify and hold
harmless the Company and its officers, directors, shareholders, employees,
agents, accountants and attorneys against any and all losses, claims,
damages, liabilities and expenses incurred by each such person in connection
with defending or investigating any such claims or liabilities, whether or
not resulting in any liability to such person, to which any such indemnified
party may become subject under the Securities Act, or under any other
statute, at common law or otherwise, insofar as such losses, claims, demands,
liabilities and expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact made by the
Purchaser, (ii) any omission or alleged omission of a material fact with
respect to the Purchaser or (iii) any breach of any representation, warranty
or agreement made by the Purchaser in this Agreement.
8. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of New
York without giving effect to the rules governing the conflicts of laws. Each
of the parties consents to the exclusive jurisdiction of the federal courts
whose districts encompass any part of the County of New York located in the
City of New York in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on FORUM NON CONVENIENS, to the bringing of any
such proceeding in such jurisdictions. Each party waives its right to a trial
by jury. Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such party at its address set forth at
Section 9 herein. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law.
9. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, express
overnight courier, registered first class mail, or telecopier, initially to
the address set forth below, and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section.
(a) if to the Company:
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Fleetwood Enterprises, Inc.
3125 Myers Street
Riverside, CA 92503
Tel. No.: (909) 351-3500
Fax No.: (909) 351-3690
Attn: Forrest D. Theobald, General Counsel
with a copy to:
Gibson, Dunn & Crutcher LLP
4 Park Plaza
Irvine, CA 92614
Tel. No.: (949) 451-3802
Fax No.: (949) 451-4220
Attn: Mark W. Shurtleff
(b) if to the Purchaser:
Acqua Wellington Private Placement Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Ltd.
Montague Sterling Centre
East Bay Street, P. O. Box SS-6238
Nassau, Bahamas
Attn: Anthony L.M. Inder Rieden
Tel. No.: (242) 394-2700
Fax No.: (242) 394-9667
with a copy to:
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: Christopher S. Auguste
Tel. No.: (212) 704-6000
Fax No.: (212) 704-6288
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; or when actually received or refused if sent by
other means.
10. ENTIRE AGREEMENT. This Agreement and the Registration Rights
Agreement constitute the entire understanding and agreement of the parties
with respect to the Shares to be purchased hereby and supersede all prior
and/or contemporaneous oral or written proposals or
14
agreements relating thereto all of which are merged herein. This Agreement
may not be amended or any provision hereof waived in whole or in part, except
by a written amendment signed by both of the parties.
11. COUNTERPARTS. This Agreement may be executed by facsimile
signature and in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
[end of page]
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IN WITNESS WHEREOF, this Agreement was duly executed on the date
first written above.
FLEETWOOD ENTERPRISES, INC.
By: /s/ Forrest D. Theobald
------------------------------------
Name: Forrest D. Theobald
Title: Vice President
ACQUA WELLINGTON PRIVATE PLACEMENT
FUND, LTD.
By: : /s/ Richard Colpron
------------------------------------
Name: Richard Colpron
Title: Vice President
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EXHIBIT A TO THE
COMMON STOCK PURCHASE AGREEMENT
OPINION OF COUNSEL
Opinions to be given by special counsel to the Company
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power and authority to enter into and perform its obligations under
the Transaction Documents.
2. The execution, delivery and performance by the Company of the
Transaction Documents have been duly authorized by all necessary corporate
action of the Company, and each of the Transaction Documents has been duly
executed and delivered by or on behalf of the Company. Each of the
Transaction Documents constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
3. When issued in accordance with the Purchase Agreement and after
the Company's receipt of payment for the Shares, the Shares will be duly
authorized, validly issued, fully paid and nonassessable. The Shares are not
subject to any preemptive rights provided for in the Certificate of
Incorporation or Bylaws of the Company, each as amended to date.
4. The execution and delivery of the Transaction Documents and the
performance by the Company of its obligations thereunder, do not (A) violate
any provision of the Certificate of Incorporation or Bylaws of the Company,
each as amended to date, or (B) violate applicable Delaware General
Corporation Law or any U.S. federal law or regulation applicable to the
Company that, in our experience, is generally applicable to transactions in
the nature of those contemplated in the Transaction Documents.
5. Assuming the accuracy of the representations and warranties of
Purchaser and compliance by Purchaser with its agreements contained in the
Transaction Documents, the issuance of the Shares does not violate, or
require any authorization, consent, waiver or approval of any governmental
authority or regulatory body of the State of New York or the United States of
America under, any law or regulation of the State of New York or the United
States of America applicable to the Company that, in our experience, is
generally applicable to transactions in the nature of those contemplated by
the Transaction Documents, or the General Corporation Law of the State of
Delaware, except for such authorizations, consents, waivers or approvals (i)
as may be required under the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended, or by the
New York Stock Exchange, (ii) as may be required under any state securities
or Blue Sky laws, (iii) as may be contemplated by the Registration Rights
Agreement, (iv) as already have been obtained or will be obtained prior to
the closing of the offer and sale of the Shares or (v) that, if not made or
obtained, would not have a Material Adverse Effect.
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6. Assuming the truth and accuracy of each of the representations
and warranties of Purchaser set forth in the Purchase Agreement, and in
reliance thereon without any independent investigation by us, and compliance
by Purchaser with its agreements contained in the Purchase Agreement, no
registration of the Shares under the Securities Act is required for the sale
and delivery of the Shares to Purchaser on the date hereof, it being
understood that we express no opinion on the resale of the Shares.
Opinions to be given by general counsel to the Company
7. The Company has the corporate power and authority to conduct its
business as presently conducted by it and there are no jurisdictions in
which, to my knowledge, the nature of the Company's properties or the
transaction of its business, makes the Company's qualification to do business
as a foreign corporation necessary, except for those jurisdictions in which
the Company is qualified, to my knowledge, to do business as a foreign
corporation or those jurisdictions in which failure to be so qualified would
not have a Material Adverse Effect.
8. To my knowledge, the Shares are free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the
Company.
9. The execution and delivery of the Transaction Documents and the
performance by the Company of its obligations thereunder, do not (A) violate,
conflict with or constitute a default under any material contract,
commitment, trust or agreement of any kind known to me to which the Company
is a party or by which it is bound or (B) to my knowledge, any judgment,
decree, writ, order or injunction of any court or governmental authority
binding upon the Company.
10. Except as disclosed in the Public Documents (as defined in the
Purchase Agreement), to my knowledge, there is no action, suit, proceeding or
arbitration pending against or threatened against the Company before any
court or arbitrator or any governmental body or agency which, if adversely
determined, might reasonably be expected to result in a Material Adverse
Effect, or which in any manner questions the validity of the Purchase
Agreement and the issuance of the Shares pursuant thereto, or the
Registration Rights Agreement.
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