Agreements and the Credit Documents, are collectively referred to herein as the
"Transaction Documents".
As used in this Agreement, the term "Post Transaction Subsidiaries" means the
subsidiaries of Symmetry after giving effect to the Transactions (including the
Issuer), which subsidiaries are listed on Schedule 5(c)(2) hereto.
The Issuer hereby confirms its agreement with the several Initial Purchasers
concerning the purchase and resale of the Securities, as follows:
1.
PURCHASE AND RESALE OF THE SECURITIES.
(A)
THE ISSUER AGREES TO ISSUE AND SELL THE SECURITIES TO THE SEVERAL INITIAL
PURCHASERS AS PROVIDED IN THIS AGREEMENT, AND EACH INITIAL
4
PURCHASER, ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS SET
FORTH HEREIN AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN, AGREES, SEVERALLY
AND NOT JOINTLY, TO PURCHASE FROM THE ISSUER THE RESPECTIVE PRINCIPAL AMOUNT OF
SECURITIES SET FORTH OPPOSITE SUCH INITIAL PURCHASER'S NAME IN SCHEDULE 1 HERETO
AT A PRICE EQUAL TO 97.0% OF THE PRINCIPAL AMOUNT THEREOF PLUS ACCRUED INTEREST,
IF ANY, FROM NOVEMBER 15, 2007 TO THE CLOSING DATE. THE ISSUER WILL NOT BE
OBLIGATED TO DELIVER ANY OF THE SECURITIES EXCEPT UPON PAYMENT FOR ALL THE
SECURITIES TO BE PURCHASED AS PROVIDED HEREIN.
(B)
THE ISSUER UNDERSTANDS THAT THE INITIAL
PURCHASERS INTEND TO OFFER THE SECURITIES FOR RESALE ON THE TERMS SET FORTH IN
THE TIME OF SALE INFORMATION. EACH INITIAL PURCHASER, SEVERALLY AND NOT JOINTLY,
REPRESENTS, WARRANTS AND AGREES THAT:
(I)
IT IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QIB") AND AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A) UNDER THE SECURITIES ACT;
(II)
IT HAS NOT SOLICITED OFFERS FOR, OR
OFFERED OR SOLD, AND WILL NOT SOLICIT OFFERS FOR, OR OFFER OR SELL, THE
SECURITIES BY MEANS OF ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING
WITHIN THE MEANING OF RULE 502(C) OF REGULATION D UNDER THE SECURITIES ACT
("REGULATION D") OR IN ANY MANNER INVOLVING A PUBLIC OFFERING WITHIN THE MEANING
OF SECTION 4(2) OF THE SECURITIES ACT; AND
(III)
IT HAS NOT SOLICITED OFFERS FOR, OR OFFERED
OR SOLD, AND WILL NOT SOLICIT OFFERS FOR, OR OFFER OR SELL, THE SECURITIES AS
PART OF THEIR INITIAL OFFERING EXCEPT:
(A)
WITHIN THE UNITED STATES TO PERSONS WHOM IT
REASONABLY BELIEVES TO BE QIBS IN TRANSACTIONS PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") AND, IN CONNECTION WITH EACH SUCH SALE, IT HAS
TAKEN OR WILL TAKE REASONABLE STEPS TO ENSURE THAT THE PURCHASER OF THE
SECURITIES IS AWARE THAT SUCH SALE IS BEING MADE IN RELIANCE ON RULE 144A; OR
(B)
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN ANNEX C HERETO.
(C)
EACH INITIAL PURCHASER COVENANTS THAT IT
WILL USE ITS REASONABLE BEST EFFORTS IN ORDER TO NOT SELL SECURITIES TO FMR
CORP. (WHICH CARRIES ON BUSINESS AS FIDELITY INVESTMENTS) OR ANY TRUST, FUND, OR
ENTITY THAT IS AFFILIATED WITH FMR CORP.
(D)
EACH INITIAL PURCHASER ACKNOWLEDGES AND
AGREES THAT THE ISSUER AND, FOR PURPOSES OF THE OPINIONS TO BE DELIVERED