{"id":43512,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-fleetwood-enterprises-inc-and-acqua.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-fleetwood-enterprises-inc-and-acqua","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-agreement-fleetwood-enterprises-inc-and-acqua.html","title":{"rendered":"Purchase Agreement &#8211; Fleetwood Enterprises Inc. and Acqua Wellington Private Placement Fund Ltd."},"content":{"rendered":"<pre>                               PURCHASE AGREEMENT\n\n         This PURCHASE AGREEMENT (this \"AGREEMENT\"), dated as of October 24, \n2001, is entered into by and between FLEETWOOD ENTERPRISES, INC., a Delaware \ncorporation with offices at 3125 Myers Street, Riverside, CA 92503 (the \n\"COMPANY\"), and ACQUA WELLINGTON PRIVATE PLACEMENT FUND, LTD., a company \norganized under the laws of the Commonwealth of the Bahamas, with offices c\/o \nFortis Fund Services (Bahamas) Ltd., Montague Sterling Centre, East Bay \nStreet, P. O. Box SS-6238, Nassau, Bahamas (the \"PURCHASER\"), for the \npurchase and sale of shares of the common stock, par value $1.00 per share \n(the \"COMMON STOCK\"), of the Company by the Purchaser, in the manner, and \nupon the terms, provisions and conditions set forth in this Agreement.\n\n         WHEREAS, the parties desire that, upon the terms and subject to the \nconditions contained herein, the Company shall issue and sell to the \nPurchaser and Purchaser shall purchase shares of the Common Stock; and\n\n         WHEREAS, such purchase and sale will be made in reliance upon the \nprovisions of Section 4(2) and Rule 506 of Regulation D (\"REGULATION D\") of \nthe United States Securities Act of 1933, as amended and regulations \npromulgated thereunder (the \"SECURITIES ACT\"), and\/or upon such other \nexemption(s) from the registration requirements of the Securities Act as may \nbe available with respect to any or all of the purchases of Common Stock to \nbe made hereunder.\n\n         NOW, THEREFORE, in consideration of the representations, warranties \nand agreements contained herein and other good and valuable consideration, \nthe receipt and legal adequacy of which is hereby acknowledged by the \nparties, the Company and the Purchaser hereby agree as follows:\n\n         1.       PURCHASE PRICE.\n\n                  (a) Upon the following terms and subject to the conditions \ncontained herein, the Purchaser hereby agrees to purchase 2,209,945 shares of \nthe Company's Common Stock (the \"SHARES\") at a per share price of $9.05 and \nfor an aggregate purchase price of $20,000,000 (the \"PURCHASE PRICE\").\n\n                  (b) The Company has authorized and has reserved and \ncovenants to continue to reserve, free of preemptive rights and other similar \ncontractual rights of stockholders, a sufficient number of its authorized but \nunissued shares of its Common Stock, to effect the issuance of the Shares.\n\n                  (c) The closing (the \"CLOSING\") under this Agreement shall \ntake place at the offices of the Jenkens &amp; Gilchrist Parker Chapin LLP, The \nChrysler Building, 405 Lexington Avenue, New York, New York 10174 at 1:00 \np.m. (eastern time) upon the satisfaction of each of the conditions set forth \nin Section 4 hereof (the \"CLOSING DATE\").\n\n\n                                       5\n\n\n                  (d) The Company shall deliver to the Purchaser on or prior \nto the Closing Date a certificate representing the Shares. Upon receipt of \nthe certificate representing the Shares, the Purchaser shall pay the Purchase \nPrice therefor by check, wire transfer or such other form of payment as shall \nbe mutually agreed upon by the Company and the Purchaser.\n\n         2.       REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. \nThe Purchaser represents and warrants to the Company, and covenants for the \nbenefit of the Company, as follows:\n\n                  (a) This Agreement has been duly authorized, validly \nexecuted and delivered by the Purchaser and is a valid and binding agreement \nand obligation of the Purchaser enforceable against the Purchaser in \naccordance with its terms, subject to limitations on enforcement by general \nprinciples of equity and by bankruptcy or other laws affecting the \nenforcement of creditors' rights generally, and the Purchaser has full power \nand authority to execute and deliver this Agreement and the other agreements \nand documents contemplated hereby and to perform its obligations as provided \nhereunder and thereunder.\n\n                  (b) The Purchaser has received and carefully reviewed \ncopies of the Public Documents (as hereinafter defined) and has access to the \nCommission Documents (as hereinafter defined). The Purchaser understands that \nno federal, state, local or foreign governmental body or regulatory authority \nhas made any finding or determination relating to the fairness of an \ninvestment in any of the Shares and that no federal, state, local or foreign \ngovernmental body or regulatory authority has recommended or endorsed, or \nwill recommend or endorse, any investment in any of the Shares. The \nPurchaser, in making the decision to purchase the Shares, has relied upon \nindependent investigation made by it and its advisors, if any, and has not \nrelied on any information or representations made by third parties or by the \nCompany or its officers, directors, employees, agents, accountants or \nattorneys. The Purchaser and its advisors, if any, have been furnished with \nall materials relating to the business, finances and operations of the \nCompany and materials relating to the business, finances and operations of \nthe Company and materials relating to the offer and sale of the Shares which \nhave been requested by the Purchaser. The Purchaser and its advisors, if any, \nhave been afforded the opportunity to ask questions of the Company. The \nPurchaser has sought such accounting, legal and tax advice as it has \nconsidered necessary to make an informed investment decision with respect to \nits acquisition of the Shares. The Purchaser understands that it (and not the \nCompany) shall be responsible for its own tax liabilities that may arise as a \nresult of this investment or the transactions contemplated by this Agreement.\n\n                  (c) The Purchaser understands that the Shares are being \noffered and sold to it in reliance on specific provisions of federal and \nstate securities laws and that the Company is relying upon the truth and \naccuracy of the representations, warranties, agreements, acknowledgments and \nunderstandings of the Purchaser set forth herein for purposes of qualifying \nfor exemptions from registration under the Securities Act, and applicable \nstate securities laws.\n\n\n                                       6\n\n\n                  (d) The Purchaser is, and at all times relevant to the \noffer to sell the Shares was, an \"accredited investor\" as defined under Rule \n501 of Regulation D promulgated under the Securities Act.\n\n                  (e) The Purchaser is and will be acquiring the Shares for \nsuch Purchaser's own account, for investment, and not with a view to any \nresale or distribution of the Shares in whole or in part, in violation of the \nSecurities Act or any applicable securities laws.\n\n                  (f) The offer and sale of the Shares is intended to be \nexempt from registration under the Securities Act, by virtue of Section 4(2) \nand Regulation D promulgated under the Securities Act. The Purchaser \nunderstands that the Shares purchased hereunder have not been, and may never \nbe, registered under the Securities Act and that none of the Shares can be \nsold or transferred unless they are first registered under the Securities Act \nand such state and other securities laws as may be applicable or, in the \nopinion of counsel for the Company, an exemption from registration under the \nSecurities Act is available (and then the Shares may be sold or transferred \nonly in compliance with such exemption and all applicable state and other \nsecurities laws to the reasonable satisfaction of counsel for the Company). \nThe Purchaser will not sell any of the Shares in violation of this Section \n2(f).\n\n                  (g) The Purchaser (i) has such knowledge and experience in \nfinancial and business matters as to be capable of evaluating the merits and \nrisks of an investment in the Company; and (ii) recognizes that such \nPurchaser's investment in the Company involves a high degree of risk.\n\n                  (h) The Purchaser is capable of evaluating the risks and \nmerits of an investment in the Shares by virtue of its experience as an \ninvestor and its knowledge, experience, and sophistication in financial and \nbusiness matters and such Purchaser is capable of bearing the entire loss of \nits investment in the Shares.\n\n                  (i) The Purchaser is neither a registered broker-dealer nor \nan affiliate of a registered broker-dealer.\n\n                  (j) Neither the Purchaser nor any of its affiliates, \nofficers or agents will solicit any material non-public information from the \nCompany.\n\n                  (k) The Purchaser has no agreement or arrangement with the \nCompany or with any third party for the sale or disposition of the Common \nStock to be purchased pursuant to this Agreement.\n\n                  (l) The Purchaser covenants with the Company as follows: \nThe Purchaser's trading and distribution activities with respect to the \nShares will be in compliance with all applicable state and federal securities \nlaws, rules and regulations (including, without limitation, regulation M \npromulgated under the Securities Act) and the rules and regulations of the \nNew York Stock Exchange. Neither the Purchaser nor any of its affiliates (as \nthat term is defined in Rule 405 promulgated under the Securities Act) has \ntaken, nor will any of them take, directly or \n\n\n                                       7\n\n\nindirectly, any action designed to cause or that would result in, or which \nconstitutes or that might reasonably be expected to constitute, the \nstabilization or manipulation of the price of the Common Stock to facilitate \nthe purchase, sale or resale of the Common Stock or the Shares.\n\n                  (m) The Purchaser is a company duly organized, validly \nexisting and in good standing under the laws of the Commonwealth of the \nBahamas.\n\n                  (n) The execution and delivery of this Agreement and the \nRegistration Rights Agreement, the acquisition of any of the Shares and the \nconsummation of the transactions contemplated by this Agreement and the \nRegistration Rights Agreement by the Purchaser, will not (i) conflict with or \nresult in a breach of or a default under any of the terms or provisions of \nPurchaser's organizational documents, or (ii) result in a violation of any \nmaterial provision of any law, statute, rule, regulation, or any existing \napplicable decree, judgment or order by any court, federal or state \nregulatory body, administrative agency, or other governmental body having \njurisdiction over the Purchaser.\n\n         3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The \nCompany represents and warrants to the Purchaser, and covenants for the \nbenefit of the Purchaser, as of the date of this Agreement, that except as \nset forth in the disclosure schedule of even date hereof delivered to \nPurchaser by the Company (the \"DISCLOSURE SCHEDULE\"), which exceptions shall \nbe deemed to be a part of and to qualify the representations and warranties \nto which they refer as if made hereunder:\n\n                  (a) The Company has been duly incorporated and is validly \nexisting and in good standing under the laws of the state of Delaware, with \nfull corporate power and authority to own, lease and operate its properties \nand to conduct its business as currently conducted, and is duly registered \nand qualified to conduct its business and is in good standing in each \njurisdiction or place where the nature of its properties or the conduct of \nits business requires such registration or qualification, except where the \nfailure to register or qualify would not have a Material Adverse Effect. For \npurposes of this Agreement, \"Material Adverse Effect\" shall mean any effect \non the business, prospects, operations, properties or financial condition of \nthe Company that is material and adverse to the Company and its subsidiaries, \ntaken as a whole.\n\n                  (b) The Company has furnished the Purchaser with copies of \nthe Company's most recent Annual Report on Form 10-K for fiscal year ended \nApril 29, 2001 (the \"FORM 10-K\") filed with the Securities and Exchange \nCommission (the \"COMMISSION\") and its Form 10-Q for the quarterly period \nended July 29, 2001 (the \"FORM 10-Q\"; collectively with the Form 10-K, the \n\"PUBLIC DOCUMENTS\"). The Public Documents at the time of their filing did not \ninclude any untrue statement of a material fact or omit to state any material \nfact necessary in order to make the statements contained therein, in light of \nthe circumstances under which they were made, not misleading. As used herein, \n\"Commission Documents\" means all reports, schedules, forms, statements and \nother documents filed by the Company with the Commission pursuant to the \nreporting requirements of the Securities Exchange Act of 1934, as amended \n(the \"EXCHANGE ACT\"), including material filed pursuant to Section 13(a) or \n15(d) of the Exchange Act.\n\n\n                                       8\n\n\n                  (c) The Shares have been duly authorized by all necessary \ncorporate action and, when paid for by the Purchaser and issued in accordance \nwith the terms hereof, the Shares shall be validly issued, will be fully paid \nand non-assessable.\n\n                  (d) Each of this Agreement and the Registration Rights \nAgreement attached hereto as Exhibit A (the \"REGISTRATION RIGHTS AGREEMENT\") \nhas been duly authorized, validly executed and delivered on behalf of the \nCompany and is a valid and binding agreement and obligation of the Company \nenforceable against the Company in accordance with its terms, subject to \nlimitations on enforcement by general principles of equity and by bankruptcy \nor other laws affecting the enforcement of creditors' rights generally, and \nthe Company has full power and authority to execute and deliver this \nAgreement and the other agreements and documents contemplated hereby and to \nperform its obligations hereunder and thereunder.\n\n                  (e) The execution and delivery of this Agreement and the \nRegistration Rights Agreement, the issuance of any of the Shares and the \nconsummation of the transactions contemplated by this Agreement and the \nRegistration Rights Agreement by the Company, will not (i) conflict with or \nresult in a breach of or a default under any of the terms or provisions of, \n(A) the Company's certificate of incorporation or by-laws, or (B) of any \nprovision of any material indenture, mortgage, deed of trust or other \nmaterial agreement or instrument to which the Company is a party or by which \nit or any of its material properties or assets is bound, (ii) result in a \nviolation of any material provision of any law, statute, rule, regulation, or \nany existing applicable decree, judgment or order by any court, federal or \nstate regulatory body, administrative agency, or other governmental body \nhaving jurisdiction over the Company, or any of its material properties or \nassets or (iii) result in the creation or imposition of any material lien, \ncharge or encumbrance upon any material property or assets of the Company or \nany of its subsidiaries pursuant to the terms of any agreement or instrument \nto which any of them is a party or by which any of them may be bound or to \nwhich any of their property or any of them is subject except in the case of \nclauses (i)(B) or (iii) for any such conflicts, breaches, or defaults or any \nliens, charges, or encumbrances which would not have a Material Adverse \nEffect.\n\n                  (f) The sale and issuance of the Shares in accordance with \nthe terms and on the basis of the representations and warranties set forth in \nthis Agreement will be exempt from the registration requirements of the \nSecurities Act.\n\n                  (g) No consent, approval or authorization of or \ndesignation, declaration or filing with any governmental authority on the \npart of the Company is required in connection with the valid execution and \ndelivery of this Agreement or the offer, sale or issuance of the Shares or \nthe consummation of any other transaction contemplated by this Agreement \n(other than any filings which may be required to be made by the Company with \nthe Commission, or New York Stock Exchange or pursuant to any state or \"blue \nsky\" securities laws, and, any registration statement which have been made or \nmay be filed pursuant to this Agreement).\n\n                  (h) There is no action, suit, claim or proceeding before or \nby any court or governmental agency or body, domestic or foreign, now pending \nagainst or affecting the Company, or any of its properties, which questions \nthe validity of this Agreement, \n\n\n                                       9\n\n\nthe Registration Rights Agreement or the transactions contemplated thereby or \nany action taken or to be take pursuant thereto. Except as described in the \nPublic Documents, there is no action, suit, claim or proceeding before or by \nany court or governmental agency or body, domestic or foreign, now pending \nagainst or affecting the Company, or any of its properties, which, if \nadversely determined, is reasonably likely to result in a Material Adverse \nEffect.\n\n                  (i) Subsequent to the dates as of which information is \ngiven in the Public Documents, except as contemplated herein, the Company has \nnot incurred any material liabilities or material obligations, direct or \ncontingent, or entered into any material transactions not in the ordinary \ncourse of business.\n\n                  (j) The Company has sufficient title and ownership of all \ntrademarks, service marks, trade names, copyrights, patents, trade secrets \nand other proprietary rights (\"INTELLECTUAL PROPERTY\") necessary for its \nbusiness as now conducted and as proposed to be conducted as described in the \nPublic Documents or the Commission Documents, except for any of such \nIntellectual Property, the absence of which would not reasonably be likely to \nresult in a Material Adverse Effect, and to its knowledge without any \nconflict with or infringement of the rights of others. Except as set forth in \nthe Public Documents, Commission Documents or on Schedule 3(j) of the \nDisclosure Schedule, there are no material outstanding options, licenses or \nagreements of any kind relating to the Intellectual Property, nor is the \nCompany bound by or party to any material options, licenses or agreements of \nany kind with respect to the Intellectual Property of any other person or \nentity.\n\n                  (k) The Company has complied and will comply with all \napplicable federal and state securities laws in connection with the offer, \nissuance and sale of the Shares hereunder. Neither the Company nor anyone \nacting on its behalf, directly or indirectly, has or will sell, offer to sell \nor solicit offers to buy any of the Shares or solicit offers with respect \nthereto from, or enter into any preliminary conversations or negotiations \nrelating thereto with, any person, or has taken or will take any action so as \nto bring the issuance and sale of any of the Shares under the registration \nprovisions of the Securities Act and any other applicable federal and state \nsecurities laws. Neither the Company nor any of its affiliates, nor any \nperson acting on its or their behalf, has engaged in any form of general \nsolicitation or general advertising (within the meaning of Regulation D under \nthe Securities Act) in connection with any of the Shares.\n\n                  (l) None of this Agreement, the Disclosure Schedule or the \nRegistration Rights Agreement contains any untrue statement of a material \nfact or omits to state a material fact necessary in order to make the \nstatements made herein or therein, in the light of the circumstances under \nwhich they were made herein or therein, not misleading.\n\n                  (m) The authorized capital stock of the Company and the \nshares thereof issued and outstanding as of October 22, 2001 are set forth on \nSCHEDULE 3(M) of the Disclosure Schedule. All of the outstanding shares of \nthe Company's Common Stock have been duly and validly authorized, and are \nfully paid and non-assessable. Except as set forth in this Agreement, the \nPublic Documents, the Commission Documents or on SCHEDULE 3(M) of the \nDisclosure Schedule, as of October 22, 2001, no shares of Common Stock are \nentitled to preemptive rights \n\n\n                                       10\n\n\nor registration rights and there are no outstanding options, warrants, scrip, \nrights to subscribe to, call or commitments of any character whatsoever \nrelating to, or securities or rights convertible into, any shares of capital \nstock of the Company. Furthermore, except as set forth in this Agreement, in \nthe Public Documents, the Commission Documents or on SCHEDULE 3(M) of the \nDisclosure Schedule, as of the date hereof, there are no contracts, \ncommitments, understandings, or arrangements by which the Company is or may \nbecome bound to issue additional shares of the capital stock of the Company \nor options, securities or rights convertible into shares of capital stock of \nthe Company. Except as disclosed in the Commission Documents or on SCHEDULE \n3(M) of the Disclosure Schedule, and except for customary transfer \nrestrictions contained in agreements entered into by the Company in order to \nsell restricted securities, as of the date hereof, the Company is not a party \nto any agreement granting registration rights to any person with respect to \nany of its equity or debt securities. The Company is not a party to, and it \nhas no knowledge of, any agreement restricting the voting or transfer of any \nshares of the capital stock of the Company. The offer and sale of all capital \nstock, convertible securities, rights, warrants, or options of the Company \nissued prior to the Closing complied in all material respects with all \napplicable federal and state securities laws, and no stockholder has a right \nof rescission or damages with respect thereto which is reasonably likely to \nhave a Material Adverse Effect. The Company has furnished or made available \nto the Purchaser true and correct copies of the Company's Certificate of \nIncorporation as in effect on the date hereof (the \"CERTIFICATE\"), and the \nCompany's Bylaws as in effect on the date hereof (the \"BYLAWS\").\n\n                  (n) Prior to the effectiveness of the Registration \nStatement (as defined in the Registration Rights Agreement), the Company will \nuse all reasonable commercial best efforts to list the Shares for trading on \nthe New York Stock Exchange or any relevant market or system on which the \nShares are listed or quoted, if applicable, and will comply in all material \nrespects with the Company's reporting, filing and other obligations under the \nbylaws or rules of the New York Stock Exchange or any relevant market or \nsystem.\n\n                  (o) The Company may not issue a press release or otherwise \nmake a public statement or announcement with respect to the transaction \ncontemplated hereby prior to the Closing Date without the consent of the \nPurchaser, which consent shall not be unreasonably withheld, delayed or \nconditioned. In the event that the Company is required by law or regulations \nto issue a press release or otherwise make a public statement or announcement \nwith respect to this Agreement prior to or after the Closing Date, the \nCompany shall reasonably consult with the Purchaser on the form and substance \nof such press release or other disclosure.\n\n                  (p) The Company may enter into an agreement with a third \nparty before the effectiveness of the registration statement covering the \nShares, the principal purpose of which is to secure equity financing (an \n\"OTHER FINANCING\"), provided the price per share paid for the financing is \ngreater than the Purchaser's average purchase price. If the Company enters \ninto an Other Financing at a price per share less than the Purchaser's \naverage purchase price, the Company will issue additional shares to the \nPurchaser based on standard \"weighted average\" anti-dilution formula (the \n\"ANTI-DILUTION SHARES\"). If issued, the Anti-Dilution Shares shall be \nregistered in a separate registration statement.\n\n\n                                       11\n\n\n                  (q) Neither the Company nor any of its officers or agents \nshall disclose any material non-public information about the Company to the \nPurchaser.\n\n         4. CONDITIONS PRECEDENT: The obligations hereunder of both the \nCompany and the Purchaser to enter into this Agreement are subject to their \nsatisfaction or waiver, at or before the Closing, of each of the conditions \nset forth below. These conditions are for the Company's and the Purchaser's \nsole benefit respectively, and they may waive their own rights at any time in \ntheir sole discretion.\n\n                  (a) The parties shall have executed and delivered this \nAgreement and the Registration Rights Agreement.\n\n                  (b) The Company shall have delivered certificates \nevidencing the Shares to the Purchaser.\n\n                  (c) Upon receipt of the certificates evidencing the Shares, \nthe Purchaser shall have delivered to the Company immediately available funds \nas payment in full of the Purchase Price for the Shares.\n\n                  (d) The Purchaser shall have received a legal opinion in \nsubstantially the form annexed hereto as Exhibit A.\n\n         5. LEGENDS. Unless otherwise provided below, each certificate \nrepresenting the Shares shall be stamped or otherwise imprinted with a legend \nsubstantially in the following form (the \"LEGEND\"):\n\n                  \"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN\n                  REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE\n                  \"SECURITIES ACT\"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE\n                  SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR\n                  OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES\n                  ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR FLEETWOOD\n                  ENTERPRISES, INC. (THE \"COMPANY\") SHALL HAVE RECEIVED AN\n                  OPINION, IN FORM, SCOPE AND SUBSTANCE REASONABLY ACCEPTABLE TO\n                  THE COMPANY, OF COUNSEL WHO IS REASONABLY ACCEPTABLE TO THE\n                  COMPANY THAT REGISTRATION OF SUCH SECURITIES UNDER THE\n                  SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE FEDERAL\n                  AND STATE SECURITIES LAWS IS NOT REQUIRED.\"\n\n         6. FEES AND EXPENSES. Each of the Company and the Purchaser shall \npay its respective fees and expenses related to the transactions contemplated \nby this Agreement and the Registration Rights Agreement; except that the \nCompany shall pay on the Closing Date, all \n\n\n                                       12\n\n\nreasonable legal fees and expenses, exclusive of disbursements and \nout-of-pocket expenses, incurred by the Purchaser of up to $25,000 in \nconnection with the preparation, negotiation, execution and delivery of this \nAgreement and the Registration Rights Agreement.\n\n         7.       INDEMNIFICATION.\n\n                  (a) The Company hereby agrees to indemnify and hold \nharmless the Purchaser and its officers, directors, shareholders, employees, \nagents, accountants and attorneys against any and all losses, claims, \ndamages, liabilities and reasonable expenses incurred by each such person in \nconnection with defending or investigating any such claims or liabilities, \nwhether or not resulting in any liability to such person, to which any such \nindemnified party may become subject, insofar as such losses, claims, \ndemands, liabilities and expenses arise out of or are based upon any breach \nof any representation or warranty made by the Company in this Agreement.\n\n                  (b) The Purchaser hereby agrees to indemnify and hold \nharmless the Company and its officers, directors, shareholders, employees, \nagents, accountants and attorneys against any and all losses, claims, \ndamages, liabilities and expenses incurred by each such person in connection \nwith defending or investigating any such claims or liabilities, whether or \nnot resulting in any liability to such person, to which any such indemnified \nparty may become subject under the Securities Act, or under any other \nstatute, at common law or otherwise, insofar as such losses, claims, demands, \nliabilities and expenses arise out of or are based upon (i) any untrue \nstatement or alleged untrue statement of a material fact made by the \nPurchaser, (ii) any omission or alleged omission of a material fact with \nrespect to the Purchaser or (iii) any breach of any representation, warranty \nor agreement made by the Purchaser in this Agreement.\n\n         8. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be \ngoverned by and interpreted in accordance with the laws of the State of New \nYork without giving effect to the rules governing the conflicts of laws. Each \nof the parties consents to the exclusive jurisdiction of the federal courts \nwhose districts encompass any part of the County of New York located in the \nCity of New York in connection with any dispute arising under this Agreement \nand hereby waives, to the maximum extent permitted by law, any objection, \nincluding any objection based on FORUM NON CONVENIENS, to the bringing of any \nsuch proceeding in such jurisdictions. Each party waives its right to a trial \nby jury. Each party to this Agreement irrevocably consents to the service of \nprocess in any such proceeding by the mailing of copies thereof by registered \nor certified mail, postage prepaid, to such party at its address set forth at \nSection 9 herein. Nothing herein shall affect the right of any party to serve \nprocess in any other manner permitted by law.\n\n         9. NOTICES. All notices and other communications provided for or \npermitted hereunder shall be made in writing by hand delivery, express \novernight courier, registered first class mail, or telecopier, initially to \nthe address set forth below, and thereafter at such other address, notice of \nwhich is given in accordance with the provisions of this Section.\n\n                           (a)     if to the Company:\n\n\n                                       13\n\n\n                                   Fleetwood Enterprises, Inc.\n                                   3125 Myers Street\n                                   Riverside,  CA  92503\n                                   Tel. No.: (909) 351-3500\n                                   Fax No.: (909) 351-3690\n                                   Attn: Forrest D. Theobald, General Counsel\n\n                                   with a copy to:\n\n\n                                   Gibson, Dunn &amp; Crutcher LLP\n                                   4 Park Plaza\n                                   Irvine, CA 92614\n                                   Tel. No.:  (949) 451-3802\n                                   Fax No.:  (949) 451-4220\n                                   Attn:  Mark W. Shurtleff\n\n                           (b)     if to the Purchaser:\n\n                                   Acqua Wellington Private Placement Fund, Ltd.\n                                   c\/o Fortis Fund Services (Bahamas) Ltd.\n                                   Montague Sterling Centre\n                                   East Bay Street, P. O. Box SS-6238\n                                   Nassau, Bahamas\n                                   Attn:  Anthony L.M. Inder Rieden\n                                   Tel. No.: (242) 394-2700\n                                   Fax No.: (242) 394-9667\n\n                                   with a copy to:\n\n                                   Jenkens &amp; Gilchrist Parker Chapin LLP\n                                   The Chrysler Building\n                                   405 Lexington Avenue\n                                   New York, New York 10174\n                                   Attn:  Christopher S. Auguste\n                                   Tel. No.: (212) 704-6000\n                                   Fax No.: (212) 704-6288\n\n         All such notices and communications shall be deemed to have been \nduly given: when delivered by hand, if personally delivered; when receipt is \nacknowledged, if telecopied; or when actually received or refused if sent by \nother means.\n\n         10. ENTIRE AGREEMENT. This Agreement and the Registration Rights \nAgreement constitute the entire understanding and agreement of the parties \nwith respect to the Shares to be purchased hereby and supersede all prior \nand\/or contemporaneous oral or written proposals or \n\n\n                                       14\n\n\nagreements relating thereto all of which are merged herein. This Agreement \nmay not be amended or any provision hereof waived in whole or in part, except \nby a written amendment signed by both of the parties.\n\n         11. COUNTERPARTS. This Agreement may be executed by facsimile \nsignature and in counterparts, each of which shall be deemed an original, but \nall of which together shall constitute one and the same instrument.\n\n                                  [end of page]\n\n\n                                       15\n\n\n         IN WITNESS WHEREOF, this Agreement was duly executed on the date \nfirst written above.\n\n                                       FLEETWOOD ENTERPRISES, INC.\n\n                                       By:   \/s\/ Forrest D. Theobald\n                                          ------------------------------------\n                                          Name:     Forrest D. Theobald\n                                          Title:    Vice President\n\n\n\n                                       ACQUA WELLINGTON PRIVATE PLACEMENT \n                                       FUND, LTD.\n\n                                       By:  :   \/s\/ Richard Colpron\n                                          ------------------------------------\n                                          Name:  Richard Colpron\n                                          Title:  Vice President\n\n\n                                       16\n\n\n                                EXHIBIT A TO THE\n                         COMMON STOCK PURCHASE AGREEMENT\n                               OPINION OF COUNSEL\n\n         Opinions to be given by special counsel to the Company\n\n         1. The Company is a corporation duly incorporated, validly existing \nand in good standing under the laws of the State of Delaware and has the \ncorporate power and authority to enter into and perform its obligations under \nthe Transaction Documents.\n\n         2. The execution, delivery and performance by the Company of the \nTransaction Documents have been duly authorized by all necessary corporate \naction of the Company, and each of the Transaction Documents has been duly \nexecuted and delivered by or on behalf of the Company. Each of the \nTransaction Documents constitutes a valid and binding obligation of the \nCompany, enforceable against the Company in accordance with its terms.\n\n         3. When issued in accordance with the Purchase Agreement and after \nthe Company's receipt of payment for the Shares, the Shares will be duly \nauthorized, validly issued, fully paid and nonassessable. The Shares are not \nsubject to any preemptive rights provided for in the Certificate of \nIncorporation or Bylaws of the Company, each as amended to date.\n\n         4. The execution and delivery of the Transaction Documents and the \nperformance by the Company of its obligations thereunder, do not (A) violate \nany provision of the Certificate of Incorporation or Bylaws of the Company, \neach as amended to date, or (B) violate applicable Delaware General \nCorporation Law or any U.S. federal law or regulation applicable to the \nCompany that, in our experience, is generally applicable to transactions in \nthe nature of those contemplated in the Transaction Documents.\n\n         5. Assuming the accuracy of the representations and warranties of \nPurchaser and compliance by Purchaser with its agreements contained in the \nTransaction Documents, the issuance of the Shares does not violate, or \nrequire any authorization, consent, waiver or approval of any governmental \nauthority or regulatory body of the State of New York or the United States of \nAmerica under, any law or regulation of the State of New York or the United \nStates of America applicable to the Company that, in our experience, is \ngenerally applicable to transactions in the nature of those contemplated by \nthe Transaction Documents, or the General Corporation Law of the State of \nDelaware, except for such authorizations, consents, waivers or approvals (i) \nas may be required under the Securities Act of 1933, as amended (the \n\"Securities Act\"), the Securities Exchange Act of 1934, as amended, or by the \nNew York Stock Exchange, (ii) as may be required under any state securities \nor Blue Sky laws, (iii) as may be contemplated by the Registration Rights \nAgreement, (iv) as already have been obtained or will be obtained prior to \nthe closing of the offer and sale of the Shares or (v) that, if not made or \nobtained, would not have a Material Adverse Effect.\n\n\n                                       17\n\n\n         6. Assuming the truth and accuracy of each of the representations \nand warranties of Purchaser set forth in the Purchase Agreement, and in \nreliance thereon without any independent investigation by us, and compliance \nby Purchaser with its agreements contained in the Purchase Agreement, no \nregistration of the Shares under the Securities Act is required for the sale \nand delivery of the Shares to Purchaser on the date hereof, it being \nunderstood that we express no opinion on the resale of the Shares.\n\n         Opinions to be given by general counsel to the Company\n\n         7. The Company has the corporate power and authority to conduct its \nbusiness as presently conducted by it and there are no jurisdictions in \nwhich, to my knowledge, the nature of the Company's properties or the \ntransaction of its business, makes the Company's qualification to do business \nas a foreign corporation necessary, except for those jurisdictions in which \nthe Company is qualified, to my knowledge, to do business as a foreign \ncorporation or those jurisdictions in which failure to be so qualified would \nnot have a Material Adverse Effect.\n\n         8. To my knowledge, the Shares are free and clear of all liens, \ncharges, restrictions, claims and encumbrances imposed by or through the \nCompany.\n\n         9. The execution and delivery of the Transaction Documents and the \nperformance by the Company of its obligations thereunder, do not (A) violate, \nconflict with or constitute a default under any material contract, \ncommitment, trust or agreement of any kind known to me to which the Company \nis a party or by which it is bound or (B) to my knowledge, any judgment, \ndecree, writ, order or injunction of any court or governmental authority \nbinding upon the Company.\n\n         10. Except as disclosed in the Public Documents (as defined in the \nPurchase Agreement), to my knowledge, there is no action, suit, proceeding or \narbitration pending against or threatened against the Company before any \ncourt or arbitrator or any governmental body or agency which, if adversely \ndetermined, might reasonably be expected to result in a Material Adverse \nEffect, or which in any manner questions the validity of the Purchase \nAgreement and the issuance of the Shares pursuant thereto, or the \nRegistration Rights Agreement.\n\n\n                                       18\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7546],"corporate_contracts_industries":[9391],"corporate_contracts_types":[9622,9627],"class_list":["post-43512","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleetwood-enterprises-inc","corporate_contracts_industries-autos__rvs","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43512","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43512"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43512"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43512"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43512"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}