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EXHIBIT 1.1
ICN PHARMACEUTICALS, INC.
$200,000,000 AGGREGATE PRINCIPAL AMOUNT OF
8 3/4 % SENIOR NOTES DUE 2008
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PURCHASE AGREEMENT
New York, New York
August 14, 1998
▇▇▇▇▇▇▇▇ & CO. INC.
WARBURG DILLON READ LLC
c/▇ ▇▇▇▇▇▇▇▇ & Co. Inc.
Equitable Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
ICN Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to you (the "Initial Purchasers") $200,000,000 aggregate
principal amount of 8 3/4 % Senior Notes due 2008 (the "Notes"), to be issued
pursuant to the provisions of an Indenture (the "Indenture") to be entered into
between the Company and United States Trust Company of New York, as trustee (the
"Trustee").
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
exemptions therefrom provided by Section 4(2) of the Securities Act and Rule
144A promulgated thereunder.
In connection with the offering and sale of the Notes (the
"Offering"), the Company has prepared a preliminary offering memorandum
(including the documents incorporated by reference therein, the "Preliminary
Offering Memorandum") and will prepare a final offering memorandum (including
the documents incorporated by reference therein, the "Final Offering Memorandum"
and, together with the Preliminary Offering Memorandum, each a "Memorandum")
setting forth or including a description of the terms of the Notes, the terms of
the Offering, a description of the Company and any material developments
relating
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to the Company occurring after the date of the most recent financial statements
included therein.
You and your direct and indirect transferees will be entitled to
the benefits of a registration rights agreement to be entered into between the
Company and the Initial Purchasers substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement"), pursuant to which the Company
will agree to use its best efforts to file and have declared effective a
registration statement (an "Exchange Offer Registration Statement") with the
Securities and Exchange Commission (the "Commission") registering the offer and
sale of the Notes, the Private Exchange Notes or the Exchange Notes (each as
defined in the Registration Rights Agreement) under the Securities Act. This
Agreement, the Notes, the Indenture and the Registration Rights Agreement are
referred to herein as the "Offering Documents."
This is to confirm the agreement concerning the purchase by you
of the Notes from the Company.
1. The Company represents and warrants to and agrees with you
that:
(a) The Preliminary Offering Memorandum, as of its date, did not
contain any untrue statement of a material fact or omit to state a
material fact (except for pricing terms and other financial terms
intentionally left blank) necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and the Final Offering Memorandum, as of its date did not,
and as of the Delivery Date (as defined below) will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth
in this Section 1(a) do not apply to statements or omissions contained
in any Memorandum made in reliance upon and in conformity with
information relating to the Initial Purchasers furnished by the Initial
Purchasers to the Company in writing expressly for use in either
Memorandum or any amendment or supplement thereto.
(b) Neither the Company nor any of the Subsidiaries (as defined
below) has sustained, since the date of the most recent financial
statements included in the Final Offering Memorandum, any loss or
interference with its business from fire, explosion, flood or other
calamity,
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whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, which loss or interference is
material to the Company and the Subsidiaries, taken as a whole. Since
the respective dates as of which information is given in the Final
Offering Memorandum there has not been any change in the capital stock
or short-term debt (other than in the ordinary course of business) or
long-term debt of the Company or any of the Subsidiaries, or any change
or development which could reasonably be expected to have a material
adverse effect upon the business, operations, assets, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries, taken as a whole, or an adverse effect on the ability of
the Company to perform its obligations under the Offering Documents (a
"Material Adverse Effect"), otherwise than as set forth or contemplated
in the Final Offering Memorandum.
(c) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case, free and clear of
all liens, adverse claims, encumbrances, security interests
(collectively, "Liens") and defects except those that are described or
contemplated by the Final Offering Memorandum or those that do not
materially affect the value of such property and do not materially
interfere with the use made or proposed to be made (as described in the
Final Offering Memorandum) of such property by the Company and the
Subsidiaries. Any real property and buildings held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made (as
described in the Final Offering Memorandum) of such real property and
buildings by the Company and the Subsidiaries.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with all necessary corporate power and authority to own its
properties and to conduct its business as described in the Final
Offering Memorandum. The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
property, or conducts any business, so as to require such qualification
(except where
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the failure to so qualify, singly or in the aggregate with all other
such failures, would not have a Material Adverse Effect) and each such
jurisdiction is listed on Schedule II hereto. Each of the Company's
subsidiaries (the "Subsidiaries") is listed on Schedule I hereto. Except
as described in the Final Offering Memorandum and on Schedule I hereto,
each of the Subsidiaries is wholly owned directly or indirectly by the
Company. Each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with all necessary corporate power and
authority to own its properties and conduct its business as described in
the Final Offering Memorandum.
(e) The Company had at the date indicated in the Final Offering
Memorandum the capitalization set forth in the column entitled "Actual"
under the caption "Capitalization" as set forth in the Final Offering
Memorandum and, based on the assumptions stated in the Final Offering
Memorandum, the Company would have had on the date indicated the
adjusted capitalization as set forth in the column entitled "Pro Forma"
under the caption "Capitalization" as set forth in the Final Offering
Memorandum. Except as described in the Final Offering Memorandum, all of
the issued and outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company free and clear of all Liens.
There are no outstanding options, warrants or other rights to acquire,
or instruments convertible into or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock of any
Subsidiary.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly authorized by the Company and,
when executed and delivered by the Company on the Delivery Date
(assuming due authorization, execution and delivery by the Trustee),
will be a legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws relating to or affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited
by equitable principles
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of general applicability (regardless of whether in a proceeding in
equity or at law). The Indenture will conform in all material respects
to the description thereof in the Final Offering Memorandum.
(h) The Notes have been duly and validly authorized by the
Company, and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
legally 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 that (i) the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding in
equity or at law). The Notes will conform in all material respects to
the description thereof contained in the Final Offering Memorandum.
(i) The Exchange Notes and the Private Exchange Notes have been
duly and validly authorized by the Company, and, when executed,
authenticated and delivered in accordance with the terms of the
Indenture and the Registration Rights Agreement, will be legally 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 that (i) the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability
(regardless of whether considered in a proceeding in equity or at law).
(j) The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the
Company on the Delivery Date (assuming due authorization, execution and
delivery by, and enforceability against, the Initial Purchasers), will
be a legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that (i) the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganiza-
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tion, moratorium, fraudulent transfer or other similar laws relating to
or affecting creditors' rights generally, (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding in
equity or at law) and (iii) rights to indemnity may be limited by state
or federal laws relating to securities or by policies underlying such
laws. The Registration Rights Agreement will conform in all material
respects to the description thereof contained in the Final Offering
Memorandum.
(k) The execution, delivery and performance by the Company of
the Offering Documents and the consummation of the transactions
contemplated thereby will not (i) conflict with, or result in a breach
or violation of, any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, license, permit,
loan agreement, lease or other material agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties or assets is bound or is
subject, (ii) violate any provision of the certificate of incorporation
or the by-laws or similar organizational documents of the Company or any
of the Subsidiaries or any material statute or any material order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties or assets, or (iii) result in or require the creation or
imposition of any Lien, upon or with respect to any of the properties of
the Company or any of the Subsidiaries, except as permitted by the terms
of the Indenture. No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Notes, except
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the offer and sale of the Notes.
(l) Except as described in the Final Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or
any of the Subsidiaries is a party or of which any of their respective
properties or assets is the subject which, if determined adversely,
would singly or in the aggregate have a Material Adverse Effect. To the
Company's best knowledge, except as described in the Final Offering
Memorandum, no such proceed-
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ings are threatened or contemplated by any governmental agency or body
or any other person.
(m) The Company and the Subsidiaries have all material licenses,
permits and other approvals or authorizations of and from governmental
agencies and bodies ("Permits") as are necessary under applicable law to
own their respective properties and to conduct their respective
businesses in the manner now being conducted as described in the Final
Offering Memorandum. The Company and the Subsidiaries have fulfilled and
performed in all material respects all of their respective obligations
with respect to such material Permits, and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or result in any other material impairment of the
rights of the holder of any such material Permits.
(n) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company, are independent public accountants
under rule 101 of AICPA's Code of Professional Conduct and its
interpretation and rulings.
(o) The consolidated financial statements of the Company and the
Subsidiaries included or incorporated by reference in the Final Offering
Memorandum present fairly the financial condition, the results of
operations and the cash flows of the Company and the Subsidiaries as of
the dates and for the periods therein specified in conformity with
generally accepted accounting principles consistently applied throughout
the periods involved, except as otherwise stated therein.
(p) There is no presently existing dispute or controversy
between the Company or any of the Subsidiaries and any of their
respective employees which has had or is likely to have, and the Company
has no reason to believe that the relationship of the Company and the
Subsidiaries with their unions or employees is likely to have, a
Material Adverse Effect.
(q) The Company and the Subsidiaries own or possess adequate
patents, patent rights, inventions, trademarks, service marks, trade
names and copyrights necessary to conduct their business as presently
conducted as described in the Final Offering Memorandum. Neither the
Company nor any of the Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others
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with respect to any material patent, patent rights, inventions,
trademarks, service marks, trade names or copyrights which could
reasonably be expected to have a Material Adverse Effect.
(r) Neither the Company nor any of the Subsidiaries is in
violation of any provision of their respective certificate of
incorporation or by-laws. The Company and each of the Subsidiaries is in
compliance with all laws, rules, regulations, orders, judgments, writs
and decrees applicable to them other than those which, singly or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(s) No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, license, permit, loan agreement,
lease or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their
respective properties or assets is bound or is subject, which default,
singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(t) The Company and the Subsidiaries have timely filed all
federal income and other material tax returns and notices. The Company
has no knowledge of any tax deficiencies which would have a Material
Adverse Effect. The Company and its Subsidiaries have paid all federal,
state, local and foreign taxes of any nature which are shown on its
returns to be due, in each case except as may be set forth or adequately
reserved for in the financial statements included in the Final Offering
Memorandum in accordance with GAAP. The amounts currently set up as
provisions for taxes or otherwise by the Company and the Subsidiaries on
their books and records are sufficient for the payment of all their
unpaid federal, foreign, state, county and local taxes accrued through
the dates as of which they relate, and for which the Company and the
Subsidiaries may be liable in their own right, or as a transferee of the
assets of, or as successor to any other corporation, association,
partnership, joint venture or other entity.
(u) Since the date as of which information is given in the
Preliminary Offering Memorandum through the date
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hereof, and except as may otherwise be disclosed in the Final Offering
Memorandum, neither the Company nor any of the Subsidiaries has sold or
otherwise disposed of any capital stock of the Company or the
Subsidiaries, directly or indirectly.
(v) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(w) The Company, immediately before and after the consummation
of the Offering and the other transactions contemplated in the Final
Offering Memorandum, will be Solvent. As used herein, the term "Solvent"
means, with respect to any such entity on a particular date (i) the fair
market value of the assets of such entity is greater than the total
amount of liabilities (including contingent liabilities) of such entity,
(ii) the present fair saleable value of the assets of such entity is
greater than the amount that will be required to pay the probable
liabilities of such entity on its debts as they become absolute and
matured, (iii) such entity is able to realize upon its assets and pay
its debts and other liabilities, including contingent obligations, as
they mature and (iv) such entity does not have an unreasonably small
capital.
(x) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "Affiliate")
has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Notes in a manner that would require the
registration under the Securities Act of the Notes or (ii) engaged in
any form of general solicitation or general advertising in connection
with the offering of the Notes (as those terms are used in Regulation D
under
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the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(y) Neither the Company nor any of the Subsidiaries is, or will
be after giving effect to the Offering and the application of the
proceeds therefrom and the other transactions contemplated by the
Offering Documents, an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(z) Assuming the representations and warranties of the Initial
Purchasers are true and correct, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchasers in
the manner contemplated by this Agreement to register the Notes under
the Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
(aa) The Company and the Subsidiaries (i) are in compliance with
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not individually or in the aggregate result in a Material Adverse
Effect.
(bb) When the Notes are issued and delivered pursuant to this
Agreement, the Notes will not be of the same class (within the meaning
of Rule 144A under the Securities Act) as securities of the Company
which are listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder
(collectively, the "Exchange Act"), or quoted in a U.S. automated
interdealer quotation system.
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(cc) The Company and each of the Subsidiaries maintains insurance
covering their properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in
accordance with customary industry practice to protect the Company and
the Subsidiaries and their businesses. All such insurance is outstanding
and in force on the date hereof and will be outstanding and in force on
the Delivery Date.
2. On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Initial Purchasers, and the Initial
Purchasers acting severally and not jointly, agree to purchase from the Company,
$200,000,000 aggregate principal amount of the Notes in the respective amounts
set forth opposite their respective names on Schedule III attached hereto at a
purchase price of 95.526% of the principal amount thereof.
3. Certificates in definitive form for the Notes to be purchased
by you hereunder shall be delivered by or on behalf of the Company to you for
your account against payment by you of the purchase price therefor by wire
transfer of immediately available funds to an account specified by the Company
by written notice to the Initial Purchasers (given at least two business days
prior to the Delivery Date), for the purchase price of the Notes being sold by
the Company in New York, New York, at 9:30 A.M., New York City time, on August
20, 1998, or at such other time, date and place as you and the Company may agree
upon in writing, such time and date being herein called the "Delivery Date."
Certificates for the Notes so to be delivered will be in good
delivery form, and in such denominations and registered in such names as you may
request not less than 48 hours prior to the Delivery Date. Such certificates
will be made available for checking and packaging in New York, New York, at
least 24 hours prior to the Delivery Date.
4. The Initial Purchasers propose to offer the Notes for resale
only to certain investors (as further described in subparagraph (a) of this
Paragraph 4) upon the terms and conditions set forth in this Agreement and the
Final Offering Memorandum initially at the purchase price set forth on the cover
page of the Final Offering Memorandum. Each of the Initial Purchasers hereby
represent and warrants (as to itself), and agrees with, the Company that:
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(a) It is an institutional "accredited investor" (as defined in
501(a)(1), (2), (3) or (7) under the Securities Act) and will offer or
sell the Notes only (i) inside the United States, to persons who it
reasonably believes are "qualified institutional buyers" within the
meaning of Rule 144A in transactions meeting the requirements of Rule
144A and (ii) pursuant to offers and sales that occur outside the United
States within the meaning of Regulation S under the Securities Act; and
(b) It has not and will not offer or sell the Notes by any form
of general solicitation or general advertising, including but not
limited to, the methods described in Rule 502(c) under the Securities
Act.
5. In consideration of the agreements of the Initial Purchasers
contained in this Agreement, the Company covenants and agrees as follows:
(a) The Company will furnish to you, without charge, as many
copies of the Final Offering Memorandum and any supplements and
amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Final Offering
Memorandum subsequent to the execution of this Agreement, the Company
will furnish to you a copy of each such proposed amendment or supplement
and will not use any such proposed amendment or supplement to which you
reasonably object.
(c) If, at any time prior to the completion of the distribution
of the Notes to persons that are not your affiliates (as determined by
you), any event occurs as a result of which the Final Offering
Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Offering
Memorandum to comply with applicable law, the Company will notify you
thereof and will prepare, at the expense of the Company, an amendment or
supplement to the Final Offering Memorandum that corrects such statement
or omission or effects such compliance.
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(d) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions in the
United States as you shall reasonably request; 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. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided.
The Company will also supply you with such information as is necessary
for the determination of the legality of the Notes in such jurisdictions
as you may request.
(e) The Company will not, and will not permit any of its
Affiliates to, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) which could be integrated with the sale of the Notes in
a manner which would require the registration under the Securities Act
of the Notes.
(f) Except following the effectiveness of the Exchange Offer
Registration Statement, the Company will not solicit any offer to buy or
offer to sell the Notes by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(g) While any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will make available, upon request, to any
holder or beneficial owner of outstanding Notes the information
specified in Rule 144A(d)(4) under the Securities Act, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(h) The Company will use its best efforts to permit the Notes to
be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market and to permit the Notes to
be eligi-
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ble for clearance and settlement through the Depository Trust Company.
(i) For a period of five years following the Delivery Date, the
Company will furnish to the Initial Purchasers copies of any 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 to the Trustee or to
the holders of the Notes pursuant to the Indenture.
(j) The Company will not, and will not permit any of its
Affiliates to, resell any Notes that have been acquired by any of them.
(k) The Company will use the proceeds from the sale of the Notes
in the manner set forth in the Final Offering Memorandum and in a manner
that will not result in the Company becoming an investment company
within the meaning of the Investment Company Act, and the rules and
regulations of the Commission thereunder.
(l) The Company will not, and will cause each of the
Subsidiaries incorporated in or principally conducting its business
within the United States of America not to, offer, sell, contract to
sell or grant any option to purchase or otherwise transfer or dispose of
any debt security, or any security convertible into or in exchange for,
any such debt security of the Company or any such Subsidiary (other than
(x) any private loan, credit or financing agreement with a bank or
similar institution and (y) the Notes, the Exchange Notes and the
Private Exchange Notes), for a period of 180 days after the date of this
Agreement, without your prior written consent.
6. The Company covenants and agrees that the Company will pay or
cause to be paid: (i) the fees, disbursements and expenses of counsel and
accountants for the Company and the Trustee and its counsel, and all other
expenses, in connection with the preparation and printing of each Memorandum and
amendments and supplements thereto and the furnishing of copies thereof,
including charges for mailing, air freight and delivery and counting and
packaging thereof to the Initial Purchasers and dealers; (ii) all expenses in
connection with the qualification of the Notes for offering and sale under state
securities laws as provided in Section 5(d) hereof, including
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disbursements and expenses for counsel for the Initial Purchasers in connection
with such qualification and in connection with Blue Sky surveys; (iii) any fees
charged by rating agencies for the rating of the Notes; (iv) the costs and
expenses in connection with the preparation and delivery of the Notes; and (v)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section 6,
including the fees, if any, incurred in connection with the admission of the
Notes for trading in any appropriate market systems, the cost of the Company's
personnel and other internal costs, the cost of printing and engraving the
certificates representing the Notes and all expenses and property, excise and
similar taxes incident to the sale and delivery of the Notes to be sold by the
Company to the Initial Purchasers hereunder.
7. Your obligations hereunder shall be subject, in your
discretion, to the following additional conditions:
(a) The representations and warranties of the Company contained
in this Agreement shall be true and correct as of the date hereof and as
of the Delivery Date. The Company shall have performed in all material
respects all covenants and agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
hereunder at or prior to the Delivery Date.
(b) The sale of the Notes by the Company hereunder shall not be
enjoined (temporarily or permanently) on the Delivery Date.
(c) Subsequent to the date as of which information is given in
the Final Offering Memorandum, except in each case as described in or as
contemplated by the Final Offering Memorandum, the Company and the
Subsidiaries shall not have incurred any liabilities or obligations,
direct or contingent that are material to the Company and the
Subsidiaries taken as a whole or entered into any transactions that are
material to the business, condition (financial or other), results of
operations or prospects of the Company and the Subsidiaries taken as a
whole.
(d) Subsequent to the date of this Agreement and prior to the
Delivery Date, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
16
-16-
Company's securities, including the Notes, by any "nationally recognized
statistical rating organization" as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(e) You shall have received on the Delivery Date a certificate
of the Company dated the Delivery Date and signed by its Chief Executive
Officer, President or any Vice President and by the Chief Financial
Officer, to the effect set forth in clauses (a), (b), (c) and (d) above.
(f) (i) Proskauer Rose LLP, special counsel to the Company,
shall have furnished to you their written opinion, dated the Delivery
Date, in substantially the form attached hereto as Exhibit B, and (ii)
▇▇▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel of the Company, shall have
furnished to you his written opinion, dated the Delivery Date, in
substantially the form attached hereto as Exhibit C.
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers,
shall have furnished to the Initial Purchasers a written opinion, dated
the Delivery Date, in form and substance satisfactory to you, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon the matters covered by
such opinion.
(h) You shall have received on each of the date hereof and the
Delivery Date a letter, dated the date hereof or the Delivery Date, as
the case may be, in form and substance reasonably satisfactory to you,
from PricewaterhouseCoopers LLP, the Company's independent public
accountants.
(i) (i) Since the date of this Agreement, neither the Company
nor any of the Subsidiaries shall have sustained any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which could reasonably
be expected to have a Material Adverse Effect; and (ii) since the
respective dates as of which information is given in the Final Offering
Memorandum, there shall not have been any change in the capital stock or
short-term debt (other than in the ordinary course of business) or
long-term debt of the Company or any of the Subsidiaries nor any change
which could reasonably be expected to have a Material Adverse Effect
otherwise than as set forth or
17
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contemplated in the Final Offering Memorandum, the effect of which, in
any such case described in clause (i) or (ii), is in your judgment so
material and adverse as to make it impracticable or inadvisable to
proceed with the Offering or the delivery of the Notes on the terms and
in the manner contemplated in the Final Offering Memorandum.
(j) Subsequent to the execution and delivery of this Agreement,
(i) there shall have been no declaration of war by the Government of the
United States, (ii) there shall not have occurred any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any
outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in the judgment of
the Initial Purchasers, impracticable to market the Notes or to enforce
contracts for the resale of Notes and (iii) no event shall have occurred
resulting in (A) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market
being suspended or limited or minimum or maximum prices being generally
established on such exchange or market, or (B) additional material
governmental restrictions, not in force on the date of this Agreement,
being imposed upon trading in securities generally by such exchange or
by order of the Commission or any court or other governmental authority
or (C) a general banking moratorium being declared by either Federal or
New York authorities.
(k) The Company shall have furnished or caused to be furnished
to you at the Delivery Date any additional certificates signed by
officers of the Company, satisfactory to you as to such matters as you
may reasonably request.
(l) The Company and the Initial Purchasers shall have entered
into the Registration Rights Agreement.
8. (a) The Company agrees to indemnify and hold harmless the
Initial Purchasers against any losses, claims, damages or liabilities
("Losses"), to which any Initial Purchaser may become subject, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Memorandum, or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a
18
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material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse the
Initial Purchasers for any legal or other expenses reasonably incurred by the
Initial Purchasers in connection with investigating, preparing to defend,
defending or appearing as a third-party witness in connection with any such
action or claim; provided, however, that the Company shall not be liable to the
Initial Purchasers in any such case to the extent that any such Loss arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission relating to the Initial Purchasers made in any Memorandum,
or such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial Purchasers
expressly for use therein; provided, however, that the foregoing indemnity with
respect to the Preliminary Offering Memorandum shall not inure to the benefit of
the Initial Purchasers if the person asserting such losses, claims, damages or
liabilities purchased Notes if (x) it is established in the related proceeding
that the Initial Purchasers failed to send or give a copy of the Final Offering
Memorandum to such person with or prior to the written confirmation of such sale
(provided that the Company has complied with its obligations under Section 5(a)
hereof) and (y) the untrue statement or omission or alleged untrue statement or
omission was completely corrected in the Final Offering Memorandum and the Final
Offering Memorandum does not contain any other untrue statement or omission or
alleged untrue statement or omission that was the subject matter of the related
proceeding.
(b) In addition to any obligations of the Company under Section
8(a), the Company agrees that it shall perform its indemnification obligations
under Section 8(a) (as modified by the last paragraph of this Section 8(b)),
with respect to counsel fees and expenses and other expenses reasonably incurred
by making payments within 60 days to the Initial Purchasers in the amount of the
statements of the Initial Purchasers' counsel or other statements which shall be
forwarded by the Initial Purchasers, and that it shall make such payments
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation to reimburse the Initial Purchasers for such
expenses and the possibility that such payments might later be held to have been
improper by a court and a court orders return of such payments.
The indemnity agreement in Section 8(a) shall be in addition to
any liability which the Company may otherwise have and shall extend upon the
same terms and conditions to each
19
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person, if any, who controls any of the Initial Purchasers within the meaning of
the Securities Act or the Exchange Act, and to the officers, directors,
partners, employees, representatives and agents of the Initial Purchasers or any
such control person.
(c) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Company against any Losses to which the Company
may become subject, under the Securities Act, the Exchange Act, any federal or
state statutory law or regulation, at common law or otherwise, insofar as such
Losses (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Memorandum, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Memorandum or such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Initial Purchasers relating to the Initial Purchasers expressly for use
therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating, preparing
to defend, defending or appearing as a third-party witness in connection with
any such action or claim.
The indemnity agreement in this Section 8(c) shall be in addition
to any liability which the Initial Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, and to
the officers, directors, partners, employees, representatives and agents of the
Company or any such control person.
(d) Promptly after receipt by an indemnified party under Section
8(a) or 8(c) of notice of the commencement of any action (including any
governmental investigation), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under Section 8(a) or 8(c)
except to the extent it was unaware of such action and has been prejudiced in
any material respect by such failure or from any liability which it may
20
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have to any indemnified party otherwise than under such Section 8(a) or 8(c). In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. If, however, (i)
the indemnifying party has not authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or (ii) an
indemnified party shall have reasonably concluded that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them and the indemnified party so
notifies the indemnifying party, then the indemnified party shall be entitled to
employ counsel different from counsel for the indemnifying party at the expense
of the indemnifying party and the indemnifying party shall not have the right to
assume the defense of such indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses or more than one counsel (in addition to
local 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 set of allegations or circumstances. The counsel with respect to which
fees and expenses shall be so reimbursed shall be designated in writing by the
Initial Purchasers in the case of parties indemnified pursuant to Section 8(a)
and by the Company in the case of parties indemnified pursuant to Section 8(c).
The Company shall not be liable for any settlement of any such
action or proceeding effected without its prior written consent (not to be
unreasonably withheld) and if settled with its written consent or if there is a
final judgment for the plaintiff, the Company agrees to indemnify and hold
harmless the Initial Purchasers and each other person referred to in Section
8(b) to the extent provided herein. Without limiting the generality of the
foregoing, no indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any such indemnified party is or
21
-21-
has been threatened to be made a party and to which the indemnity herein is
applicable; provided, however, that an indemnifying party may effect such a
settlement without the consent of the indemnified party if such settlement
includes an unconditional release of such indemnified party from all liability
for claims that are the subject matter of such proceeding or the indemnifying
party indemnifies the indemnified party in writing and posts a bond for an
amount equal to the maximum liability for all such claims as contemplated above.
(e) In the event that the indemnity provided by Section 8(a) or
8(c) is unavailable or insufficient to hold harmless an indemnified party for
any reason, the Company and the Initial Purchasers shall contribute to the
aggregate Losses to which they may be subject as an indemnifying party hereunder
(after contribution from others) in such proportion so that the Initial
Purchasers are responsible for the portion represented by the percentage that
the total discounts and commissions paid to the Initial Purchasers appearing on
the cover page of the Final Offering Memorandum bears to the total proceeds to
the Company (net of discounts and commissions of the Initial Purchasers)
appearing thereon and the Company is responsible for the remaining portion;
provided, however, that, in any such case, (x) the Initial Purchasers shall not
be required to contribute any amount in excess of the Initial Purchasers'
discount and commission applicable to the Notes and (y) no person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to a contribution from any person who was not
guilty of such fraudulent misrepresentation. The amount paid or payable by the
Initial Purchasers as result of this Section 8(e) shall be deemed to include any
legal or other expenses reasonably incurred by the Initial Purchasers in
connection with investigating, preparing to defend or defending any such claim.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Initial Purchasers, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of the Initial Purchasers or any controlling person of the Initial
Purchasers, the Company or an officer or director or controlling person of the
Company and shall survive delivery of and payment for the Notes.
10. The obligations of the Initial Purchasers hereunder may be
terminated by the Initial Purchasers by notice
22
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given to and received by the Company prior to delivery of and payment for the
Notes, if, prior to that time, any of the events described in Section 7(d),
7(i), or 7(j) shall have occurred or if the Initial Purchasers shall decline to
purchase the Notes for any other reason permitted under this Agreement.
11. If (a) the Company shall fail to tender the Notes for
delivery to the Initial Purchasers (other than by reason of a default by the
Initial Purchasers) or (b) the Initial Purchasers shall decline to purchase the
Notes for any reason permitted under this Agreement (except the termination of
this Agreement pursuant to Section 10 due solely to the occurrence of an event
enumerated in Section 7(j)), the Company shall reimburse the Initial Purchasers
for the reasonable fees and expenses of their counsel and for such other
reasonable out-of-pocket expenses as shall have been incurred by it in
connection with this Agreement and the proposed purchase of the Notes, and upon
demand the Company shall pay the full amount thereof to the Initial Purchasers.
12. All statements, requests, notices and agreements hereunder
shall be in writing or by written telecommunication, and shall be sufficient in
all respects if delivered or sent by registered mail, if to the Initial
Purchasers, to ▇▇▇▇▇▇▇▇ & Co. Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: High Yield Department; and if to the Company to ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Chief Executive Officer.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, you, the Company and, to the extent provided in Section 8 hereof,
controlling persons, officers, directors, partners, employees, representatives
and agents referred to in Section 8, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Notes from the Initial Purchasers shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
principles of conflicts of law).
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each
23
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of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between you and the Company.
Very truly yours,
ICN PHARMACEUTICALS, INC.
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇▇ & CO. INC.
WARBURG DILLON READ LLC
By: ▇▇▇▇▇▇▇▇ & CO. INC.
By: /s/ [SIG]
--------------------------
Name:
Title:
25
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between you and the Company.
Very truly yours,
ICN PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇▇▇ & CO. INC.
WARBURG DILLON READ LLC
By: ▇▇▇▇▇▇▇▇ & CO. INC.
By:
--------------------------
Name:
Title:
26
SCHEDULE I
SUBSIDIARIES
Jurisdiction Percentage
Name of Incorporation Ownership
---- ---------------- ---------
ICN Canada, Limited Canada 100%
Alpha Pharmaceutical, Inc. Panama 100%
ICN Farmaceutica, S.A. Mexico 100%
Laboratorios ▇▇▇▇▇▇▇▇, ▇.▇. Mexico 100%
ICN Pharmaceuticals, Holland, B.V. Netherlands 100%
ICN Biomedicals, Inc. Delaware 100%
ICN Yugoslavia Yugoslavia 75%
ICN Biomedicals GmbH-Eschwege Germany 100%
ICN Pharmaceuticals Australasia Pty Ltd. Australia 100%
ICN Pharmaceuticals K.K. Japan 100%
ICN Biomedicals B.V. Netherlands 100%
ICN Biomedicals California, Inc. California, U.S.A. 100%
ICN Iberica Spain 100%
Labsystems Benelux B.V. Netherlands 100%
Labsystems Benelux N.V. Belgium 100%
ICN Biomedicals, Ltd. Scotland 100%
ICN Biomedicals, GmbH Germany 100%
ICN Pharmaceuticals France S.A. France 100%
ICN Biomedicals S.R.L. Italy 95%
ICN Biomedicals N.V./S.A. Belgium 100%
ICN Oktyabr Russia 90%
ICN Polypharm Russia 89%
ICN Leksredstva Russia 95%
ICN Alkaloida Hungary 60%
Wuxi ICN Pharmaceuticals China 75%
ICN Puerto Rico, Inc. Puerto Rico 100%
Polfa Rzeszow, S.A. Poland 80%
AO Tomsk Chemical Pharmaceutical Plant Russia 75%
Marbiopharm Russia 72%
27
SCHEDULE II
ICN Pharmaceuticals, Inc.
Delaware (jurisdiction of incorporation)
California
New York
Ohio
ICN Biomedicals, Inc.
Delaware (jurisdiction of incorporation)
Alabama
ICN Pharmaceuticals California, Inc.
California (jurisdiction of incorporation)
ICN Biomedicals California, Inc.
California (jurisdiction of incorporation)
28
SCHEDULE III
Principal Amount
Initial Purchaser of Notes
----------------- ----------------
▇▇▇▇▇▇▇▇ & Co. Inc. ...................................... $140,000,000
Warburg Dillon Read LLC................................... 60,000,000
------------
Total...................................... $200,000,000
============
29
Exhibit B to
Purchase Agreement
Opinion of Proskauer Rose LLP(1)
1. Assuming that the Indenture has been duly and validly
authorized, executed and delivered by each of the Company and the Trustee, the
Indenture is a legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that (i) the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether in a
proceeding in equity or at law).
2. Assuming that the Notes have been duly and validly authorized
and executed by the Company and assuming due authentication of the Notes by the
Trustee, when the Notes are delivered to and paid for by the Initial Purchasers
in accordance with the terms of the Purchase Agreement, the Notes will be
legally 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 that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability
(regardless of whether considered in a proceeding in equity or at law).
3. Assuming that the Exchange Notes and the Private Exchange
Notes have been duly and validly authorized by the Company, when the Exchange
Notes and the Private Exchange Notes, if applicable, are executed, authenticated
and delivered in accordance with the terms of the Indenture and the Registration
Rights Agreement, the Exchange Notes and the Private Exchange Notes, if
applicable, will be legally valid and binding obligations of the Company,
entitled to the benefits of the In-
----------
(1) Capitalized terms not defined herein have the meanings given to them in the
Purchase Agreement.
30
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denture and enforceable against the Company in accordance with their terms,
except that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability
(regardless of whether considered in a proceeding in equity or at law).
4. Assuming that the Registration Rights Agreement has been duly
and validly authorized, executed and delivered by the parties thereto, the
Registration Rights Agreement is a legally valid and binding agreement of the
Company, enforceable against it in accordance with its terms, except that (i)
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether considered
in a proceeding in equity or at law) and (iii) rights to indemnity may be
limited by state or federal laws relating to securities or by policies
underlying such laws.
5. The Notes and the Registration Rights Agreement conform in all
material respects to the descriptions thereof in the Final Offering Memorandum
under the captions "Description of the Notes" and "Registration Rights,"
respectively.
6. No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York court or Federal or New York
governmental agency or body is required for the issue and sale of the Notes,
except such consents, approvals, authorizations, registrations or qualifications
as may be required under New York state securities or Blue Sky laws in
connection with the offer and sale of the Notes.
7. Assuming that the proceeds of the Offering will be applied as
described in the Final Offering Memorandum under the caption "Use of Proceeds,"
consummation of the Offering will not violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
8. Neither the Company nor any of the Subsidiaries is, or will be
after the Offering, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
31
-3-
9. Assuming the representations and warranties of the Initial
Purchasers and the Company contained in the Purchase Agreement are true and
correct, and assuming compliance by the Initial Purchasers and the Company with
their covenants contained in the Purchase Agreement, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by the Purchase Agreement to register the
Notes under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended, it being understood that no opinion is
expressed as to any subsequent resale of any Notes.
Such counsel shall also state that such counsel has participated
in conferences with officers and other representatives of the Company,
representatives of the Initial Purchasers and representatives of the independent
public accountants of the Company at which the contents of the Memorandum and
related matters were discussed. Such counsel may further state that, although
such counsel made certain inquiries and investigations in connection with the
preparation of the Memorandum such counsel did not independently verify the
accuracy or completeness of the statements made in the Memorandum and, as such,
cannot and does not assume responsibility for or pass on the accuracy or
completeness of such statements. Subject to the foregoing, such counsel shall
state that such counsel's work in connection with the Memorandum and the offer
and sale of Notes pursuant to the Purchase Agreement did not disclose any
information that would cause such counsel to believe that the Final Offering
Memorandum, as of its date or as of the Delivery Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need not make any comment with respect to the financial statements and
the notes thereto and the other financial and statistical information or data
included in the Final Offering Memorandum).
32
Exhibit C to
Purchase Agreement
Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.(1)
1. The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with all necessary corporate
power and authority to own its properties and to conduct its business as
described in the Memorandum. Based solely upon the certificates of public
officials the Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction listed in Schedule II to the Purchase Agreement.
2. All of the issued and outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued, are fully paid
and nonassessable and to such counsel's knowledge are owned by the Company free
and clear of all Liens.
3. The Company has the corporate power and authority to enter
into, and perform its obligations under, the Offering Documents.
4. The Purchase Agreement has been duly and validly authorized,
executed and delivered by the Company.
5. The Indenture has been duly and validly authorized, executed
and delivered by the Company.
6. The Notes have been duly and validly authorized and executed
by the Company.
7. The Exchange Notes and the Private Exchange Notes have been
duly and validly authorized by the Company.
8. The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Company.
----------
(1) Capitalized terms not defined herein have the meanings given to them in the
Purchase Agreement.
33
-2-
9. The execution, delivery and performance by the Company of the
Offering Documents and the consummation of the transactions contemplated thereby
will not (i) violate any provision of the certificate of incorporation or the
by-laws of the Company or any of the Subsidiaries, (ii) conflict with, or result
in a breach or violation of, any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, license, permit, loan
agreement, lease or other agreement or instrument known to such counsel to which
the Company or any of the Subsidiaries is a party or by which any of them or any
of their respective properties or assets is bound or is subject, except to the
extent any such conflict, breach, violation or default, singly or in the
aggregate with all other such conflicts, breaches, violations and defaults,
would not have a Material Adverse Effect, (iii) violate any order known to such
counsel or any statute, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the Subsidiaries or any
of their properties or assets or (iv) result in or require the creation or
imposition of any Lien, pursuant to any agreement or instrument known to such
counsel or pursuant to any statute, rule or regulation, upon or with respect to
any of the properties of the Company or any of the Subsidiaries, except pursuant
to the terms of the Indenture.
10. Other than as set forth in the Memorandum there are no
pending legal or governmental proceedings known to such counsel to which the
Company or any of the Subsidiaries is a party or of which any of their
respective properties or assets is the subject which, if determined adversely,
would singly or in the aggregate have a Material Adverse Effect. To such
counsel's knowledge, other than as set forth in the Memorandum no such
proceedings are threatened or contemplated by any governmental agency or body or
any other person.
11. To such counsel's knowledge, neither the Company nor any of
the Subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any material patent, patent rights,
inventions, trademarks, service marks, trade names or copyrights.
Such counsel shall also state that such counsel has participated
in conferences with officers and other representatives of the Company,
representatives of the Initial Purchasers and representatives of the independent
public accountants of the Company at which the contents of the Memorandum and
related matters were discussed. Such counsel may further state that, although
such counsel made certain inquiries and investigations
34
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in connection with the preparation of the Memorandum, such counsel did not
independently verify the accuracy or completeness of the statements made in the
Memorandum and, as such, cannot and does not assume responsibility for or pass
on the accuracy or completeness of such statements. Subject to the foregoing,
such counsel shall state that such counsel's work in connection with the
Memorandum and the offer and sale of Notes pursuant to the Purchase Agreement
did not disclose any information that would cause such counsel to believe that
the Final Offering Memorandum, as of its date or as of the Delivery Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need not make any comment with respect to the
financial statements and the notes thereto and the other financial and
statistical information or data included in the Final Offering Memorandum).