Exhibit 10.1
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▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
(a Delaware corporation)
$150,000,000
8 1/8% Senior Subordinated Notes due 2012
PURCHASE AGREEMENT
Dated: April 17, 2002
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TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties..............................................................2
(a) Representations and Warranties by the Company......................................2
(i) Similar Offerings.......................................................2
(ii) Offering Memorandum.....................................................2
(iii) Incorporated Documents..................................................3
(iv) Independent Accountants.................................................3
(v) Financial Statements....................................................3
(vi) No Material Adverse Change in Business..................................3
(vii) Good Standing of the Company............................................4
(viii) Good Standing of Subsidiaries...........................................4
(ix) Capitalization..........................................................4
(x) Authorization of Agreements.............................................4
(xi) Authorization of the Indenture..........................................5
(xii) Authorization of the Securities.........................................5
(xiii) Description of the Securities and the Indenture.........................5
(xiv) Absence of Defaults and Conflicts.......................................5
(xv) Absence of Labor Dispute................................................6
(xvi) Absence of Proceedings..................................................6
(xvii) Possession of Intellectual Property.....................................7
(xviii) License Agreements......................................................7
(xix) Absence of Further Requirements.........................................7
(xx) Possession of Licenses and Permits......................................8
(xxi) Title to Property.......................................................8
(xxii) Tax Returns.............................................................9
(xxiii) Insurance...............................................................9
(xxiv) Investment Company Act..................................................9
(xxv) Stabilization or Manipulation...........................................9
(xxvi) Environmental Laws......................................................9
(xxvii) Registration Rights....................................................10
(xxviii) Accounting Controls....................................................10
(xxix) Rule 144A Eligibility..................................................10
(xxx) No General Solicitation................................................10
(xxxi) No Registration Required...............................................10
(xxxii) No Directed Selling Efforts............................................11
(xxxiii) No Default on Senior Indebtedness......................................11
(xxxiv) Executive Compensation of the Company..................................11
(b) Officer's Certificates............................................................11
SECTION 2. Sale and Delivery to Initial Purchasers; Closing...........................................11
(a) Securities........................................................................11
(b) Payment...........................................................................11
(c) Qualified Institutional Buyer.....................................................12
(d) Denominations; Registration.......................................................12
SECTION 3. Covenants of the Company...................................................................12
(a) Offering Memorandum...............................................................12
(b) Notice and Effect of Material Events..............................................12
(c) Amendment to Offering Memorandum and Supplements..................................13
(d) Termination of Provisions.........................................................13
(e) Qualification of Securities for Offer and Sale....................................13
(f) Rating of Securities..............................................................13
(g) Use of Proceeds...................................................................13
(h) Restriction on Sale of Securities.................................................13
(i) DTC Clearance.....................................................................14
(j) Legends...........................................................................14
(k) Periodic Reports..................................................................14
SECTION 4. Payment of Expenses........................................................................14
(a) Expenses..........................................................................14
(b) Termination of Agreement..........................................................14
SECTION 5. Conditions of Initial Purchasers' Obligations..............................................15
(a) Opinions of Counsel for the Company...............................................15
(b) Opinion of Counsel for the Initial Purchasers.....................................15
(c) Officers' Certificate.............................................................15
(d) Accountant's Comfort Letter and Consent...........................................15
(e) Bring-down Comfort Letter.........................................................15
(f) Registration Rights Agreement and Indenture.......................................16
(g) Consents..........................................................................16
(h) Additional Documents..............................................................16
(i) Termination of Agreement..........................................................16
SECTION 6. Subsequent Offers and Resales of the Securities............................................16
(a) Offer and Sale Procedures.........................................................16
(i) Offers and Sales.......................................................16
(ii) No General Solicitation................................................17
(iii) Purchases by Non-Bank Fiduciaries......................................17
(iv) Subsequent Purchaser Notification......................................17
(v) Restrictions on Transfer...............................................17
(vi) Delivery of Offering Memorandum........................................17
(b) Covenants of the Company..........................................................17
(i) Due Diligence..........................................................17
(ii) Integration............................................................18
(iii) Rule 144A Information..................................................18
(iv) Restriction on Repurchases.............................................18
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A..........................18
SECTION 7. Indemnification............................................................................19
(a) Indemnification of Initial Purchasers.............................................19
(b) Indemnification of Company and Directors..........................................20
(c) Actions Against Parties; Notification.............................................20
(d) Settlement Without Consent if Failure to Reimburse................................20
SECTION 8. Contribution...............................................................................21
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.............................22
SECTION 10. Termination of Agreement...................................................................22
(a) Termination; General..............................................................22
(b) Liabilities.......................................................................23
SECTION 11. Default by One or More of the Initial Purchasers...........................................23
SECTION 12. Notices....................................................................................23
SECTION 13. Parties....................................................................................23
SECTION 14. Governing Law and Time.....................................................................24
SECTION 15. Effect of Headings.........................................................................24
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
(a Delaware corporation)
PURCHASE AGREEMENT
April 17, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Scientific International Inc., a Delaware corporation
(the "Company"), confirms its agreement with ▇.▇. ▇▇▇▇▇▇ Securities Inc.
("JPMorgan") and each of the other Initial Purchasers named in Schedule A
hereto (collectively, the "Initial Purchasers," which term shall also include
any initial purchasers substituted as hereinafter provided in Section 11
hereof) for whom JPMorgan is acting as representative (in such capacity, the
"Representative") with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in Schedule A of $150,000,000 aggregate
principal amount of the Company's 8 1/8% Senior Subordinated Notes due 2012
(the "Securities"). The Securities are to be issued pursuant to an indenture
to be dated as of April 24, 2002 (the "Indenture") between the Company and
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as trustee (the "Trustee").
Securities issued in book-entry form will be issued to Cede & Co. as nominee
of The Depository Trust Company ("DTC") pursuant to a letter agreement, to be
dated as of the Closing Time (as defined in Section 2(b)) (the "DTC
Agreement"), among the Company, the Trustee and DTC.
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 agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933
Act"), in reliance upon exemptions therefrom. Pursuant to the terms of the
Securities and the Indenture, investors that acquire Securities may only
resell or otherwise transfer such Securities if such Securities are hereafter
registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including the exemption afforded by
Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the rules and
regulations (the "Rules and Regulations") promulgated under the 1933 Act by
the Securities and Exchange Commission (the "Commission")).
The Company has prepared and will deliver to the Initial
Purchasers, on the date hereof or the next succeeding day, copies of a final
offering memorandum dated April 17, 2002 (the "Final Offering Memorandum"), to
be used by the Initial Purchaser, in connection with their solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means,
with respect to any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Final Offering Memorandum, or any
amendment or supplement to such document), including exhibits thereto and any
documents incorporated therein by reference, which has been prepared and
delivered by the Company to the Initial Purchasers in accordance with Section
3(c) hereof in connection with their solicitation of purchases of, or offering
of, the Securities.
All references in this Agreement to financial statements and
schedules and other information which are "contained," "included" or "stated"
in the Offering Memorandum (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which are incorporated by reference in the Offering
Memorandum and all references in this Agreement to amendments or supplements
to the Offering Memorandum shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Offering Memorandum.
The holders of the Securities will be entitled to the
benefits of the registration rights agreement to be dated as of the Closing
Time (the "Registration Rights Agreement"), among the Company and the Initial
Purchasers, pursuant to which the Company will agree to file, as soon as
practicable after the Closing Time but in any event within 90 days of the
Closing Time, a registration statement with the Commission registering the
Exchange Securities (as defined in the Registration Rights Agreement) under
the 1933 Act.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The
Company represents and warrants to each Initial Purchaser as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Initial Purchaser as follows:
(i) Similar Offerings. The Company has not, directly or
indirectly, solicited any offer to buy or offered to sell, and will
not, 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 1933 Act.
(ii) Offering Memorandum. The Offering Memorandum does not,
and at the Closing Time will not, include an 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 the Offering Memorandum made in reliance upon
and in conformity with information furnished to the Company in
writing by the Initial Purchaser expressly for use in the Offering
Memorandum.
(iii) Incorporated Documents. The Offering Memorandum as
delivered from time to time shall incorporate by reference the most
recent Annual Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the Company on Form 10-Q and
each Current Report of the Company on Form 8-K, in each case
including all amendments thereto filed with the Commission since the
filing of such Annual Report. The documents, including amendments
thereto, 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 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations"), and, when
read together with the other information in the Offering Memorandum,
at the date of the Offering Memorandum and at the Closing Time, do
not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) Independent Accountants. Deloitte & Touche, LLP, the
accountants who certified the financial statements and supporting
schedules incorporated by reference in the Offering Memorandum, are,
to the best of the Company's knowledge, independent certified public
accountants with respect to the Company and its consolidated
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
(v) Financial Statements. The financial statements,
together with the related schedules and notes, incorporated by
reference in the Offering Memorandum present fairly, in all material
respects, the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statements of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with United States
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (except as may be
stated therein or in the notes thereto). The selected financial data
and the summary financial information included in or incorporated by
reference in the Offering Memorandum present fairly, in all material
respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
incorporated by reference in the Offering Memorandum.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Offering
Memorandum, except as otherwise described or stated therein or
contemplated thereby, (A) there has been no material adverse change
in the assets, operations, properties, condition (financial or
otherwise), earnings or business affairs of the Company and its
subsidiaries (each a "Subsidiary" and, collectively, the
"Subsidiaries") considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its Subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vii) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and to enter into
and perform its obligations under this Agreement, the Registration
Rights Agreement, the Indenture, the Securities, the Exchange
Securities and the DTC Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required
(except for jurisdictions not recognizing the legal concept of good
standing), whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(viii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X of the Rules and Regulations, each a "Significant
Subsidiary" and collectively the "Subsidiaries") has been duly
organized or formed and is validly existing as a corporation or
limited liability company in good standing under the laws of the
jurisdiction of its incorporation or formation, has corporate or
other power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum
and is duly qualified as a foreign corporation, entity or limited
liability company to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Offering Memorandum, all of the issued and
outstanding capital stock or limited liability company interests of
each Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other than
Permitted Liens (as defined in the Indenture); none of the
outstanding shares of capital stock or limited liability company
interests of the Subsidiaries was issued in violation of any
preemptive or similar rights arising by operation of law, or under
the charter or by-laws of any Subsidiary or under any agreement to
which the Company or any Subsidiary is a party.
(ix) Capitalization. All of the shares of outstanding
capital stock of the Company have been duly authorized and validly
issued and fully paid and non-assessable.
(x) Authorization of Agreements. This Agreement has been
and, as of the Closing Time, each of the Registration Rights
Agreement and the DTC Agreement will have been, duly authorized,
executed and delivered by the Company. Upon the execution thereof by
the Company (and assuming the due authorization, execution and
delivery by the other parties thereto), each of the Registration
Rights Agreement and the DTC Agreement will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as rights to indemnification
and contribution may be limited under applicable law and except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and, at the Closing Time, will have
been duly executed and delivered by the Company and (assuming the due
authorization, execution and delivery of the Indenture by the
Trustee) 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, fraudulent
conveyance or other similar laws relating to or affecting enforcement
of creditors' rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xii) Authorization of the Securities. The Securities have
been duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated and issued in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor (and assuming the due authorization,
execution and delivery of the Indenture by the Trustee), will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture. The
Exchange Securities have been duly authorized and, when executed and
authenticated and issued and delivered by the Company in exchange for
the Securities pursuant to the Exchange Offer (as defined in the
Registration Rights Agreement), will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting enforcement of creditors'
rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xiii) Description of the Securities and the Indenture. The
Securities, the Indenture and the Registration Rights Agreement
conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum. The Exchange
Securities will conform in all material respects to the statements
relating thereto contained in the Offering Memorandum and the
Registration Statement (as defined in the Registration Rights
Agreement) at the time it becomes effective.
(xiv) Absence of Defaults and Conflicts. Neither the Company
nor any of the Subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument (including the Company's
7-1/8% Senior Notes due 2005 and any of the Company's outstanding 9%
Senior Subordinated Notes due 2008 (other than with respect to the
corrections to be effected by the amendment required pursuant to
Section 5(h) hereof)) to which the Company or any of the Subsidiaries
is a party or by which any of them may be bound or to which any of
the property or assets of the Company or any of its Subsidiaries is
subject (collectively, "Agreements and Instruments") or has violated
or is in violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its Subsidiaries or any of their assets or
properties, except in each case for such defaults or violations that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Registration Rights
Agreement, the Indenture, the DTC Agreement, the Securities, the
Exchange Securities and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in
the Offering Memorandum and the consummation of the transactions
contemplated herein and in the Offering Memorandum (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Offering Memorandum
under the caption "Use of Proceeds") and compliance by the Company
with its obligations hereunder do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or, when the required
consent of the lenders under the New Credit Facility (as defined in
the Offering Memorandum) necessary to consummate the transactions
contemplated hereby is received, a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, the Agreements and Instruments, Permitted
Liens and except for such breaches, defaults, Repayment Events,
liens, charges or encumbrances that would not result in a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
Subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its Subsidiaries or any of their assets or
properties other than such violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its Subsidiaries.
(xv) Absence of Labor Dispute. Except as described in the
Offering Memorandum, (a) no labor dispute with the employees of the
Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is imminent, and (b) the Company is not aware of any
existing or imminent labor disturbance by the employees of any of the
Company's or any of the Company's Subsidiaries' principal suppliers,
manufacturers, customers or contractors, which, in either case, would
result in a Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Offering Memorandum, there is no legal or governmental proceeding, in
each case before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
Subsidiary thereof which, singly or in the aggregate, would result in
a Material Adverse Effect, or which, singly or in the aggregate,
would materially and adversely affect the consummation of this
Agreement or the performance by the Company of its obligations
hereunder or under the Securities or Exchange Securities or any
portion thereof. The aggregate of all pending legal or governmental
proceedings to which the Company or any Subsidiary thereof is a party
or of which any of their respective property or assets is the subject
which are not described in the Offering Memorandum, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xvii) Possession of Intellectual Property. Except as
described in the Offering Memorandum, the Company and its
Subsidiaries own, possess or license, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither
the Company nor any of its Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property (including
Intellectual Property which is licensed) or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xviii) License Agreements. Except as described in the Offering
Memorandum, all of the agreements pursuant to which the Company or
any of its Subsidiaries licenses Intellectual Property from third
parties (the "License Agreements") have been duly authorized,
executed and delivered by the Company or such Subsidiary and
(assuming due authorization, execution and delivery by the other
parties thereto) constitute valid and binding agreements of the
Company or such Subsidiary, enforceable against the Company or such
Subsidiary in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting enforcement
of creditors' rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). Neither the Company nor any of its Subsidiaries is
in violation of or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any such
License Agreement, nor has the Company or any of its Subsidiaries
received notice from any third party that the Company or any of its
Subsidiaries is in violation of or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any such License Agreement, except for any violation or
default which, singly or in the aggregate, would not result in a
Material Adverse Effect.
(xix) Absence of Further Requirements. Except as disclosed in
the Offering Memorandum, and other than (i) registration under the
1933 Act of the Exchange Securities (including filings with the
NASD), (ii) qualification of the Indenture under the Trust Indenture
Act of 1939, as amended, upon consummation of the Exchange Offer, and
(iii) registration or qualification under state securities or "blue
sky" laws in connection with the offer and sale of the Securities or
the Exchange Securities, and subject to compliance by the Initial
Purchasers with the representations, warranties and agreements set
forth in Section 2, no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by or for the due execution, delivery or performance of
this Agreement, the Registration Rights Agreement, the Indenture, the
DTC Agreement, the Securities, the Exchange Securities and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company or any of its Subsidiaries in connection
with the consummation of the transactions contemplated herein and in
the Offering Memorandum (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the
Securities as described in the Offering Memorandum under the caption
"Use of Proceeds").
(xx) Possession of Licenses and Permits. Except as described
in the Offering Memorandum, the Company and its Subsidiaries possess
all governmental permits, licenses, approvals, consents, certificates
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them respectively or as contemplated to be conducted upon
consummation of the Recapitalization in the manner described in the
Offering Memorandum, except where the failure to possess such
Governmental Licenses would not, singly or in the aggregate, result
in a Material Adverse Effect; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
result in a Material Adverse Effect; and neither the Company nor any
of its Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses,
nor are there, to the knowledge of the Company, pending or threatened
actions, suits, claims or proceedings against the Company or any
Subsidiary before any court, governmental agency or body or otherwise
that, if successful, would limit, revoke, cancel, suspend or cause
not to be renewed any Governmental License, in each case, which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xxi) Title to Property. The Company and its Subsidiaries
have good and marketable title to all real property owned by the
Company and its Subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except liens in connection with the New
Credit Facility (as defined in the Offering Memorandum) as disclosed
in the Offering Memorandum and Permitted Liens and such as do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its Subsidiaries; and
all of the leases and subleases material to the business of the
Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties
described in the Offering Memorandum, are in full force and effect,
and neither the Company nor any of its Subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its Subsidiaries under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any Subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease which would have a Material Adverse Effect.
(xxii) Tax Returns. The Company and its Subsidiaries have
filed all federal, state, local and foreign tax returns that are
required to have been filed by them pursuant to applicable foreign,
federal, state, local or other law or have duly requested extensions
thereof, has paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company and its Subsidiaries,
except for such taxes or assessments, if any, as are being contested
in good faith and by appropriate proceedings as to which adequate
reserves have been provided or where the failure to pay would not
result in a Material Adverse Effect. The charges, accruals and
reserves on the books of the Company in respect of any income and
corporation tax liability of the Company and each Subsidiary for any
years not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not
result in a Material Adverse Effect.
(xxiii) Insurance. The Company and its Subsidiaries carry or
are entitled to the benefits of insurance in such amounts and
covering such risks as is generally maintained by companies of
established repute engaged in the same or similar business, and all
such insurance is in full force and effect.
(xxiv) Investment Company Act. The Company is not, nor upon
the consummation of the Recapitalization will be, an "investment
company" or a company "controlled by" an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
(xxv) Stabilization or Manipulation. Neither the Company nor
its Subsidiaries nor any of its officers, directors or controlling
persons has taken, directly or indirectly, any action designed to
cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities. The Company has not
distributed and, prior to the later to occur of (i) the Closing Time
and (ii) completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering and
sale of the Securities other than the Offering Memorandum or other
materials, if any, permitted by the 1933 Act and approved by the
Initial Purchasers.
(xxvi) Environmental Laws. Except as described in the Offering
Memorandum and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products or nuclear or
radioactive material (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its Subsidiaries have all
permits, licenses, authorizations and approvals currently required
for the conduct their respective businesses in the manner described
in the Offering Memorandum under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) there are no
events, facts or circumstances of which the Company is aware that
would form the basis of any liability or obligation of the Company or
any of its Subsidiaries, including, without limitation, any order,
decree, plan or agreement requiring clean-up or remediation, or any
action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its
Subsidiaries relating to any Hazardous Materials or Environmental
Laws.
(xxvii) Registration Rights. There are no holders of securities
(debt or equity) of the Company, or holders of rights (including,
without limitation, preemptive rights), warrants or options to obtain
securities of the Company, who in connection with the issuance, sale
and delivery of the Securities and the Exchange Securities, if any,
and the execution, delivery and performance of this Agreement and the
Registration Rights Agreement, have the right to request the Company
to register securities held by them under the 1933 Act.
(xxviii) Accounting Controls. The Company and its consolidated
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxix) Rule 144A Eligibility. The Securities are eligible for
resale pursuant to Rule 144A and will not be, at the Closing Time, of
the same class as securities listed on a national securities exchange
registered under Section 6 of the 1934 Act, or quoted in a U.S.
automated interdealer quotation system.
(xxx) No General Solicitation. None of the Company, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf
(other than the Initial Purchasers and their Affiliates, as to whom
the Company makes no representation, warranty or agreement) 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(c) under the 1933 Act.
(xxxi) No Registration Required. Subject to compliance by the
Initial Purchasers with the representations and warranties set forth
in Section 2 and the procedures set forth in Section 5 hereof, it is
not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the 1933 Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
(xxxii) No Directed Selling Efforts. With respect to those
Securities sold in reliance on Regulation S, (A) none of the Company,
its Affiliates or any person acting on its or their behalf (other
than the Initial Purchaser, as to whom the Company makes no
representation, warranty or agreement) has engaged or will engage in
any directed selling efforts within the meaning of Regulation S and
(B) 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, warranty or agreement) has
complied and will comply with the offering restrictions requirement
of Regulation S.
(xxxiii) No Default on Senior Indebtedness. No event of default
exists under any contract, indenture, mortgage, loan agreement or
instrument constituting Senior Indebtedness (as defined in the
Indenture).
(xxxiv) Executive Compensation of the Company. The Summary
Compensation Table and the table setting forth option grants included
in the Proxy Statement dated April 10, 2002 and incorporated by
reference by the Offering Memorandum are accurate in all material
respects.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its Subsidiaries delivered to the Initial
Purchasers or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to each Initial Purchaser as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
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(a) Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Initial Purchaser, severally and not
jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate
principal amount of Securities set forth in Schedule A opposite the name of
such Initial Purchaser, plus any additional principal amount of Securities
which such Initial Purchaser may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery
of certificates for, the Securities shall be made at the office of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 A.M. on the fifth business day after
the date hereof (unless postponed in accordance with the provisions of Section
11), or such other time not later than ten business days after such date as
shall be agreed upon by the Representative and the Company (such time and date
of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Representative for the respective accounts of the
Initial Purchasers of certificates for the Securities to be purchased by them.
It is understood that each Initial Purchaser has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. JPMorgan, individually and not as representative of the Initial
Purchasers, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Initial Purchaser whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Initial Purchaser from its obligations hereunder. The certificates
representing the Securities shall be registered in the name of Cede & Co.
pursuant to the DTC Agreement and shall be made available for examination and
packaging by the Initial Purchasers in The City of New York not later than
10:00 A.M. on the last business day prior to the Closing Time.
(c) Qualified Institutional Buyer. Each Initial Purchaser
represents and warrants to, and agrees with, the Company that it (i) is a
"qualified institutional buyer" within the meaning of Rule 144A under the 1933
Act (a "Qualified Institutional Buyer") and (ii) an "accredited investor"
within the meaning of Rule 501(a) under the 1933 Act.
(d) Denominations; Registration. Certificates for the
Securities shall be in such denominations ($1,000 or integral multiples
thereof) and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
with each Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as
possible, will furnish to each Initial Purchaser, without charge,
such number of copies of the Final Offering Memorandum and any
amendments and supplements thereto as such Initial Purchaser may
reasonably request.
(b) Notice and Effect of Material Events. The Company will
immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company of information
relating to the offering of the Securities with any securities
exchange or any other regulatory body in the United States or any
other jurisdiction, and (y) prior to the completion of the placement
of the Securities by the Initial Purchasers as evidenced by a notice
in writing from the Initial Purchasers to the Company, any material
changes in or affecting the earnings, business affairs or business
prospects of the Company and its Subsidiaries which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are
not disclosed in the Offering Memorandum. In such event or if during
such time any event shall occur or condition shall exist as a result
of which it is necessary, in the reasonable opinion of the Company,
its counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in
the light of the circumstances then existing, the Company will,
subject to Section 3(c) below, forthwith amend or supplement the
Final Offering Memorandum by preparing and furnishing to each Initial
Purchaser an amendment or amendments of, or a supplement or
supplements to, the Final Offering Memorandum (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Final
Offering Memorandum will not include an 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
existing at the time it is delivered to a Subsequent Purchaser, not
misleading.
(c) Amendment to Offering Memorandum and Supplements. The
Company will advise each Initial Purchaser promptly of any proposal
to amend or supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the Initial
Purchasers (which consent will not be unreasonably withheld). Neither
the consent of the Initial Purchasers to, nor the Initial Purchaser's
delivery of, any such amendment or supplement, shall constitute a
waiver of any of the conditions set forth in Section 5 hereof.
(d) Termination of Provisions. Notwithstanding any provision
of paragraph (b) or (c) to the contrary, however, the Company's
obligations under paragraphs (b) and (c) shall terminate on the
earliest to occur of (i) consummation of the Exchange Offer pursuant
to the Registration Rights Agreement, (ii) the effective date of a
shelf registration statement with respect to the Securities filed
pursuant to the Registration Rights Agreement and (iii) the date upon
which none of the Initial Purchasers nor any of their affiliates
continues to hold Securities acquired as part of their initial
distribution.
(e) Qualification of Securities for Offer and Sale. The
Company will use its best efforts to register or qualify the
Securities for offering and sale under the applicable securities laws
of such jurisdictions as the Representative may reasonably request,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable each Initial Purchaser to consummate
the disposition in each such jurisdiction of such Securities;
provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(f) Rating of Securities. The Company shall take all
reasonable action necessary to enable Standard & Poor's Ratings
Group, a division of The McGraw Hill Companies, Inc. ("S&P"), and
▇▇▇▇▇'▇ Investors Service Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(g) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Offering Memorandum under "Use of Proceeds."
(h) Restriction on Sale of Securities. During a period of 90
days from the date of the Offering Memorandum, neither the Company
nor any of its Subsidiaries will, without the prior written consent
of the Representative, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any securities convertible into or
exercisable or exchangeable for securities that are substantially
similar to the Securities or file any registration statement under
the Securities Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that
transfers, in whole or in part, the economic consequence of ownership
of securities that are substantially similar to the Securities,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of securities that are
substantially similar to the Securities or such other securities, in
cash or otherwise; provided, however, that such restrictions shall
not apply to the Exchange Securities.
(i) DTC Clearance. The Company will cooperate with the
Representative and use its best efforts to permit the Securities to
be eligible for clearance and settlement through the facilities of
DTC.
(j) Legends. Each certificate for a Security will bear the
legend contained in "Notices to Investors" in the Offering Memorandum
for the time period and upon the other terms stated in the Offering
Memorandum.
(k) Periodic Reports. For a period of one year after the
Closing Time, if requested by the Initial Purchasers, the Company
will furnish to the Initial Purchasers copies of all annual reports,
quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company generally to the
holders of the Securities or to security holders of its publicly
issued securities generally.
SECTION 4. Payment of Expenses.
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(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Offering Memorandum and the
Registration Statement (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, including the preliminary prospectuses and
the prospectus to be contained in the Registration Statement, (ii) the
preparation, printing and delivery to the Initial Purchasers of this
Agreement, the Registration Rights Agreement, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale
and delivery of the Securities, (iii) the preparation, issuance and delivery
of the certificates for the Securities to the Initial Purchasers, including
any charges of DTC in connection therewith, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection therewith
and in connection with the preparation of a blue sky memorandum, any
supplement thereto and any legal investment survey, (vi) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities and (vii) any fees
payable in connection with the rating of the Securities and the listing of the
Securities with the Private Offerings, Resales and Trading Through Automated
Linkages ("PORTAL") market.
(b) Termination of Agreement. If this Agreement is
terminated by the Representative in accordance with the provisions of Section
5 or Section 10(a)(i) or 10(a)(ii) hereof, the Company shall reimburse the
Initial Purchasers for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations.
The obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of
its Subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Opinions of Counsel for the Company. At the Closing
Time, the Initial Purchasers shall have received the favorable
opinions, dated as of the Closing Time, of (i) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, and (ii) ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the
Company, together with signed or reproduced copies of such letters
for each of the other Initial Purchasers, and to the effect set forth
in Exhibits A and B hereto, respectively.
(b) Opinion of Counsel for the Initial Purchasers. At the
Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Initial Purchasers, in form and substance
reasonably satisfactory to the Initial Purchasers.
(c) Officers' Certificate. At the Closing Time, there shall
not have been, since the respective dates as of which information is
given in the Offering Memorandum, any material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business, and the Initial Purchasers shall have received a
certificate of two executive officers of the Company, one of which
shall be the chief financial or accounting officer, dated as of the
Closing Time, to the effect that (i) there has been no such material
adverse change; (ii) the Company shall have complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Closing Time; and (iii) the
representations and warranties of the Company in Section 1 shall be
accurate and true and correct as though expressly made at and as of
the Closing Time.
(d) Accountant's Comfort Letter and Consent. At the time of
the execution of this Agreement, the Initial Purchasers shall have
received from Deloitte & Touche LLP a letter dated such date, in form
and substance satisfactory to the Representative or to counsel for
the Initial Purchasers, together with signed or reproduced copies of
such letter for each of the other Initial Purchasers, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers with respect to
the financial statements and certain financial information contained
in the Offering Memorandum. Deloitte & Touche LLP shall include
either in such letter or in a separate writing a consent to the
inclusion of its report in the Offering Memorandum and to the
reference to it under the caption "Independent Auditors" in the
Offering Memorandum.
(e) Bring-down Comfort Letter. At the Closing Time, the
Initial Purchasers shall have received from Deloitte & Touche LLP a
letter, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the specified date
referred to shall be a date not more than three business days prior
to the Closing Time.
(f) Registration Rights Agreement and Indenture. The Company
shall have duly authorized, executed and delivered the Registration
Rights Agreement and the Indenture, in each case in a form and
substance satisfactory to the Representative and counsel to the
Initial Purchasers.
(g) Consents. The Company shall have received all necessary
governmental and contractual consents and approvals, including those
required under the New Credit Facility, necessary for the
consummation of the transactions contemplated hereby, except to the
extent that the failure to obtain any such consent or approval would
not have a Material Adverse Effect.
(h) Additional Documents. At the Closing Time, counsel for
the Initial Purchasers shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained (including the amendment to the
Indenture dated November 20, 1998 correcting certain references); and
all proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Initial Purchasers and
counsel for the Initial Purchasers.
(i) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representative by
notice to the Company in writing at any time at or prior to the
Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except
that Sections 1, 7, 8 and 9 shall survive any such termination and
remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
-----------------------------------------------
(a) Offer and Sale Procedures. Each of the Initial
Purchasers and the Company hereby establish and agree to observe the
following procedures in connection with the offer and sale of the
Securities:
(i) Offers and Sales. Offers and sales of the Securities
will be made only by the Initial Purchasers or Affiliates thereof
qualified to do so in the jurisdictions in which such offers or sales
are made. Each such offer or sale shall only be made (A) to persons
whom the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the ▇▇▇▇ ▇▇▇) or
(B) to non-U.S. persons outside the United States to whom the offeror
or seller reasonably believes offers and sales of the Securities may
be made in reliance upon Regulation S under the 1933 Act.
(ii) No General Solicitation. The Securities will be offered
by approaching prospective Subsequent Purchasers on an individual
basis. No general solicitation or general advertising (within the
meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) will be used in the United
States in connection with the offering of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Security acting as a fiduciary for
one or more third parties, in connection with an offer and sale to
such purchaser pursuant to clause (a) above, each third party shall,
in the judgment of the applicable Initial Purchaser, be a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial
Purchaser will take reasonable steps to inform, and cause each of its
U.S. Affiliates to take reasonable steps to inform, persons acquiring
Securities from such Initial Purchaser or affiliate, as the case may
be, in the United States that the Securities (A) have not been and
will not be registered under the 1933 Act, (B) are being sold to them
without registration under the 1933 Act in reliance on Rule 144A or
in accordance with another exemption from registration under the 1933
Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the
United States in accordance with Rule 904 of Regulation S, or (3)
inside the United States in accordance with (x) Rule 144A to a person
who the seller reasonably believes is a Qualified Institutional Buyer
that is purchasing such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given
that the offer, sale or transfer is being made in reliance on Rule
144A or (y) pursuant to any other available exemption from the
registration requirements of the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and
the other provisions set forth in Section 2.6 of the Indenture,
including the legend required thereby, shall apply to the Securities
except as otherwise agreed by the Company and the Initial Purchasers.
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any
losses, damages or liabilities suffered or incurred by the Company,
including any losses, damages or liabilities under the 1933 Act,
arising from or relating to any resale or transfer of any Security.
(vi) Delivery of Offering Memorandum. Each Initial Purchaser
will deliver to each purchaser of the Securities in connection with
its original distribution of the Securities, a copy of the Offering
Memorandum, as amended and supplemented at the date of such delivery.
(b) Covenants of the Company. The Company covenants with
each Initial Purchaser as follows:
(i) Due Diligence. In connection with the original
distribution of the Securities, the Company agrees that, prior to any
offer or resale of the Securities by the Initial Purchasers, the
Initial Purchasers and counsel for the Initial Purchasers shall have
the right to make reasonable inquiries into the business of the
Company and its subsidiaries. The Company also agrees to provide
answers to each prospective Subsequent Purchaser of Securities who so
requests concerning the Company and its subsidiaries (to the extent
that such information is available or can be acquired and made
available to prospective Subsequent Purchasers without unreasonable
effort or expense and to the extent the provision thereof is not
prohibited by applicable law or contractual obligation) and the terms
and conditions of the offering of the Securities, as provided in the
Offering Memorandum.
(ii) Integration. The Company agrees that it will not and
will cause its Affiliates not to make any offer or sale of securities
of the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer
or sale would render invalid (for the purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale
of the Securities by the Initial Purchasers to Subsequent Purchasers
or (iii) the resale of the Securities by such Subsequent Purchasers
to others) the exemption from the registration requirements of the
1933 Act provided by Section 4(2) thereof or by Rule 144A or by
Regulation S thereunder or otherwise.
(iii) Rule 144A Information. The Company agrees that, in
order to render the Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Company furnishes
information to the Commission pursuant to Section 13 or 15(d) of the
1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information").
(iv) Restriction on Repurchases. Until the expiration of two
years after the original issuance of the Securities, the Company will
not, and will cause its Affiliates not to, purchase or agree to
purchase or otherwise acquire any Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the
1933 Act), whether as beneficial owner or otherwise (except as agent
acting as a securities broker on behalf of and for the account of
customers in the ordinary course of business in unsolicited broker's
transactions) unless, immediately upon any such purchase, the Company
or any Affiliate shall submit such Securities to the Trustee for
cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule
144A. Each Initial Purchaser understands that the Securities have not been and
will not be registered under the 1933 Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the 1933 Act or pursuant to an
exemption from the registration requirements of the 1933 Act. Each Initial
Purchaser represents and agrees that, except as permitted by Section 6(a)
above, it has offered and sold Securities and will offer and sell Securities
(i) as part of their distribution at any time and (ii) otherwise until forty
days after the later of the date upon which the offering of the Securities
commences and the Closing Time, only in accordance with Rule 903 of Regulation
S or Rule 144A under the 1933 Act. Accordingly, neither the Initial
Purchasers, their affiliates nor any persons acting on their behalf have
engaged or will engage in any directed selling efforts with respect to the
Securities, and the Initial Purchasers, its affiliates and any persons acting
on their behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser agrees that, at or prior
to confirmation of a sale of Securities (other than a sale of Securities
pursuant to Rule 144A), it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to or for the
account or benefit of U.S. persons (i) as part of their distribution
at any time and (ii) otherwise until forty days after the later of
the date upon which the offering of the Securities commenced and the
date of closing, except in either case in accordance with Regulation
S or Rule 144A under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
Each Initial Purchaser severally represents and agrees that
it has not entered and will not enter into any contractual arrangements with
respect to the distribution of the Securities, except with its affiliates or
with the prior written consent of the Company.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Initial Purchasers. The Company
agrees to indemnify and hold harmless each Initial Purchaser and each person,
if any, who controls each Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Final
Offering Memorandum, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative except to the extent otherwise expressly provided in
Section 7(c) hereof), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Initial Purchaser expressly for use in the Offering Memorandum.
(b) Indemnification of Company and Directors. Each Initial
Purchaser severally agrees to indemnify and hold harmless the Company and its
directors, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Company by such Initial
Purchaser expressly for use in the Offering Memorandum. It is agreed that such
information consists only of the entire third full paragraph, the fifth
sentence of the eighth full paragraph and the first and second sentences of
the tenth full paragraph under "Plan of Distribution."
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified
pursuant to Section 7(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, an indemnifying party shall not be liable for any settlement of
the nature contemplated by Section 7(a)(ii) effected without its consent if
such indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent that it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
SECTION 8. Contribution. If the indemnification provided for
in Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Initial Purchasers on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Initial Purchasers on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the
Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 8. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 8 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, the
Initial Purchasers shall not be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which the Initial Purchasers has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
such Initial Purchaser, and each director of the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of its
Subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Initial Purchaser or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
------------------------
(a) Termination; General. The Representative may terminate
this Agreement, by notice to the Company, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in
the Offering Memorandum, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis
(either within or outside the United States) or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Initial Purchaser, impracticable to proceed
with the offering, sale or delivery of the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market
System has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority,
or (iv) if a banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 8 and 9 shall survive such termination and remain in full force
and effect.
SECTION 11. Default by One or More of the Initial
Purchasers. If one or more of the Initial Purchasers shall fail at the Closing
Time to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representative shall
have the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Initial Purchasers, or any
other Initial Purchasers, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then this Agreement shall
terminate without liability on the part of any non-defaulting Initial
Purchaser.
No action pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangement.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Initial Purchasers shall be directed to the Representative at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ Tulip, with a
copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; notices to the Company shall be directed to it
at ▇▇▇▇▇▇ Scientific International, Inc., ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with copies to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇.
SECTION 13. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Initial Purchasers and the Company and
their respective successors. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person, firm or corporation,
other than the Initial Purchasers and the Company and their respective
successors and the controlling persons and officers and directors referred to
in Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Initial
Purchasers and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Initial Purchaser shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
[SIGNATURE PAGES FOLLOW]
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart, hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
CONFIRMED AND ACCEPTED, as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Sch A-1
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 52,500,000
Credit Suisse First Boston Corporation $ 52,500,000
Deutsche Bank Securities Inc. $ 45,000,000
-----------
Total $150,000,000
===========
Sch B-1
SCHEDULE B
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
$150,000,000 Senior Subordinated Notes due 2012
1. The initial offering price of the Securities in the
private placement shall be 100% of the principal amount thereof, plus accrued
interest, if any, from the date of issuance.
2. The purchase price to be paid to the Initial Purchaser
for the Securities shall be 98.5% of the gross proceeds thereof of
$150,000,000.
3. The interest rate on the Securities shall be 8 1/8% per
annum.
4. The interest payment dates of the Securities shall be May
1 and November 1 of each year, commencing November 1, 2002.
5. The Securities will be subject to redemption at any time
on and after May 1, 2007, at the option of the Company, at the following
redemption prices (expressed as percentages of the principal amount), if
redeemed during the 12-month period beginning May 1 of the years indicated
below:
Year Redemption Price
---- ----------------
2007 104.063%
2008 102.708%
2009 101.354%
2010 100.000%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the redemption date (subject to the
rights of holders of record on relevant record dates to receive interest due
on an interest payment date).
6. At any time, or from time to time, on or prior to May 1,
2005, the Company may, at its option, use the net proceeds of one or more
Equity Offerings (as defined in the Indenture) to redeem up to 40% of the
aggregate principal amount of Securities originally issued under the Indenture
at a redemption price equal to 108.125% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the redemption
date; provided that at least 60% of the original principal amount of Notes
remains outstanding immediately after any such redemption (excluding any Notes
owned by the Company).
Exhibit A
Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP pursuant to Section 5(a)1
1. The Company has the corporate power and authority to
execute, deliver and perform all its obligations under the Purchase Agreement,
the Registration Rights Agreement, the Indenture, the Securities, the Exchange
Securities and the DTC Agreement.
2. The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
3. The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) the enforceability
under certain circumstances of provisions imposing a payment obligation
pending the ability of the Company to comply timely with its registration
obligations may be limited by applicable law.
4. The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except to the extent that (a) enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to creditors' rights
generally, or (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity), (b) the
enforceability of indemnification and contribution provisions may be limited
by Federal and state securities laws or the public policies underlying such
laws and (c) the enforceability, under certain circumstances of provisions
imposing a payment obligation pending the ability of the Company to comply
timely with its registration obligations under the Registration Rights
Agreement may be limited by applicable law.
5. The DTC Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity).
6. The Securities have been duly authorized and executed by
the Company, and, when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by you in accordance with the
terms of the Purchase Agreement, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms, except to
the extent that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) the enforceability,
under certain circumstances of provisions imposing a payment obligation
pending the ability of the Company to comply timely with its registration
obligations may be limited by applicable law.
7. The issuance of the Exchange Securities has been duly
authorized by the Company, and, when the Exchange Securities have been duly
executed, authenticated, issued and delivered in exchange for the Securities,
in accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer (as defined in the Registration Rights
Agreement), the Exchange Securities will constitute valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
8. The statements set forth in the Offering Memorandum under
the caption "Certain Federal Income tax Considerations," insofar as such
statements purport to summarize certain provisions of the laws referred to
therein, fairly summarize such provisions in all material respects.
9. The statements in the Offering Memorandum under the
caption "Description of Notes," insofar as such statements purport to
summarize certain provisions of the documents referred to therein, fairly
summarize such provisions in all material respects.
10. The execution and delivery by the Company of the
Securities and each of the Transaction Documents2, and the consummation by the
Company of the transactions contemplated thereby, will not conflict with or
result in any breach or violation of, or constitute a default under, (A) the
Certificate of Incorporation or By-laws of the Company or (B) any Applicable
Laws.3
11. No Governmental Approval,4 which has not been obtained
or taken and is not in full force and effect, is required to authorize, or is
required in connection with, the execution and delivery by the Company of the
Transaction Documents or the consummation by the Company of the transactions
contemplated thereby.
12. Assuming (i) the accuracy of the representations and
warranties of the Company set forth in Sections 1(a)(i), (xxv), (xxix), (xxx)
and (xxxii) of the Purchase Agreement and of you set forth in Section 2(c) of
the Purchase Agreement, (ii) the due performance by the Company of the
covenants and agreements set forth in Sections 1(a)(i), (xxv), (xxix), (xxx)
and (xxxii) and 3(i) of the Purchase Agreement, (iii) your compliance with the
offering and transfer procedures and restrictions described in the Offering
Memorandum, (iv) the accuracy of the representations and warranties made in
accordance with the Purchase Agreement and the Offering Memorandum by
purchasers to whom you initially resell Securities and (v) that purchasers to
whom you initially resell Securities receive a copy of the Offering Memorandum
prior to or contemporaneously with such sale, the offer, sale and delivery of
the Securities to you in the manner contemplated by the Purchase Agreement and
the Offering Memorandum, and the initial resale of the Securities by you in
the manner contemplated by the Offering Memorandum and the Purchase Agreement,
do not require registration under the Securities Act of 1933, as amended, and
the Indenture does not require qualification under the Trust Indenture Act of
1939, as amended, it being understood that we do not express any opinion as to
any subsequent resale of any Security.
13. The Company is not and, upon application of the proceeds
as described in the Offering Memorandum under the caption "Use of Proceeds,"
will not be an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
In addition, we have participated in conferences with
officers and other representatives of the Company, representatives of the
independent accountants of the Company and your representatives and counsel at
which the contents of the Offering Memorandum and related matters were
discussed. We did not participate in the preparation of the documents
incorporated by reference in the Offering Memorandum but have, however,
reviewed such documents and discussed the business of the Company with
officers and other representatives of the Company. Although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum and have made
no independent check or verification thereof (other than to the extent
specified in paragraphs 9 and 10 above), on the basis of the foregoing, no
facts have come to our attention that have led us to believe that the Offering
Memorandum, as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted 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, except that we do
not express any opinion or belief with respect to the financial statements,
schedules and other financial data included or incorporated by reference
therein or excluded therefrom.
Exhibit B
Form of Opinion of Vice President,
General Counsel and Secretary
issued pursuant to Section 5(a)5
--------------------------------- -
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware.
2. The Company is duly qualified as a foreign corporation to
transact business and is in good standing as a foreign corporation under the
laws of each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect and except for jurisdictions not
recognizing the legal concept of good standing.
3. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Offering Memorandum in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent issuances,
if any, pursuant to options referred to in the Offering Memorandum). All of
the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable.
4. Each domestic significant subsidiary6 (each a "Domestic
Significant Subsidiary" and collectively the "Domestic Significant
Subsidiaries") has been duly incorporated and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation.
5. Each Domestic Significant Subsidiary has corporate or
other power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum.
6. Each Domestic Significant Subsidiary is duly qualified as
a foreign corporation to transact business and is in good standing as a
foreign corporation, entity or limited liability company under the laws of
each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except
where the failure to be so qualified or to be in good standing would not
result in a Material Adverse Effect and except for jurisdictions not
recognizing the legal concept of good standing.
7. All of the issued and outstanding capital stock (or
membership interests in the case of ▇▇▇▇▇▇ Scientific Company L.L.C.) of each
Domestic Significant Subsidiary has been duly authorized and validly issued,
is fully paid and nonassessable and, to the best of my knowledge and
information, is owned of record, directly or through subsidiaries, by the
Company free and clear of any security interest, mortgage, pledge, lien, claim
or equity other than Permitted Liens (as defined in the Indenture) and liens
under the New Credit Facility.
8. Except as described in the Offering Memorandum, there is
no action, suit or proceeding or, to my knowledge, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending or, to my knowledge, threatened, against or affecting the Company
or any of its subsidiaries, which would, individually or in the aggregate,
have a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the Purchase Agreement or the
performance by the Company of its obligations thereunder or under the
Securities or Exchange Securities or in connection with the transactions
contemplated thereby.
9. The execution, delivery and performance by the Company of
the Securities, the Exchange Securities and each of the Transaction Documents
and compliance by the Company with its obligations thereunder will not (a) to
the best of my knowledge, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of or a default or
Repayment Event under or result in the creation or imposition of any lien,
charge or encumbrance (except for Permitted Liens) upon any property or assets
of the Company or any of its Subsidiaries pursuant to any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its Subsidiaries
is subject (except for such conflicts, breaches or defaults that would not
have a Material Adverse Effect and except that I express no opinion with
respect to the financial ratios or tests or any aspects of the financial
condition or results of operations of the Company and its Subsidiaries to the
extent the determination of such conflict, breach or default required
quantitative determination), or (b) result in any violation (i) of the
provisions of the respective Certificates of Incorporation or By-laws (or
limited liability company agreement in the case of ▇▇▇▇▇▇ Scientific Company
LLC) of the Company or any of the Significant Subsidiaries or (ii) under any
judgment, order, writ or decree known to me of any government, government
instrumentality or court having jurisdiction over the Company or any of its
Subsidiaries or any of their respective assets, properties or operations,
except for permits and similar authorizations required under the securities or
Blue Sky laws of certain jurisdictions (as to which I do not express any
opinion) and such violations which would not have a Material Adverse Effect.
10. The documents incorporated by reference in the Offering
Memorandum (other than the financial statements and schedules included
therein, as to which I do not express any opinion), when they were filed with
the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
11. The information incorporated by reference in the
Offering Memorandum under "Legal Proceedings," to the extent that it
constitutes matters of law, summaries of legal matters or legal proceedings,
or legal conclusions, has been reviewed and is correct in all material
respects.
12. The Company has the corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Offering Memorandum.
In addition, I have participated in conferences with
officers and other representatives of the Company, representatives of the
independent accountants of the Company and your representatives and counsel at
which the contents of the Offering Memorandum and related matters were
discussed, and although I am not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum and have made no independent check or
verification thereof (other than to the content specified in paragraph 11
above), no facts have come to my attention that lead me to believe that the
Offering Memorandum, as of its date and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted 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, except that I
express no opinion or belief with respect to the financial statements,
schedules and other financial data included incorporated by reference therein
or excluded therefrom.
(Footnotes)
1 Opinion subject to customary assumptions, qualifications
and exceptions.
2 "Transaction Documents" means the Purchase Agreement, the
Indenture, the Registration Rights Agreement and the DTC Agreement.
3 "Applicable Laws" means the Delaware General Corporation
Law and those laws, rules and regulations of the State of New York and the
United States of America, in each case, which, in our experience, are normally
applicable to transactions of the type contemplated by the Transaction
Documents (other than United States federal securities laws, state securities
or Blue Sky laws, antifraud laws and the rules and regulations of the National
Association of Securities Dealers, Inc.), but without our having made any
special investigation with respect to any other laws, rules or regulations.
4 "Governmental Approval" means any consent, approval,
license, authorization or validation of, or filing, qualification or
registration with, any Governmental Authority required to be made or obtained
by the Company pursuant to Applicable Laws, other than any consent, approval,
license, authorization, validation, filing, qualification or registration
which may have become applicable as a result of the involvement of any other
party (other than the Company) in the transactions contemplated by the
Purchase Agreement and the other Transaction Documents or because of such
parties' legal or regulatory status or because of any other facts specifically
pertaining to such parties.
"Governmental Authorities" means any court, regulatory body,
administrative agency or governmental body of the State of Delaware or the
United States of America having jurisdiction over the Company under Applicable
Laws.
5 Opinion subject to customary assumptions, qualifications
and exceptions.
6 As the term "Significant Subsidiary" is defined in Rule
1-02 of Regulation S-X of the Rules and Regulations.