XXX LILLY AND COMPANY. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- EXHIBIT B GUARANTY Guaranty In consideration of Lilly's entering into that certain Assignment, Transfer and Assumption Agreement dated the ________ day of ________________, 2002 (the "Assignment Agreement") with NeoSan Pharmaceuticals Inc. ("Neosan"), which is a wholly-owned subsidiary of aaiPharma Inc., and that certain Manufacturing Agreement dated the ________ day of ______________, 2002 (the "Manufacturing Agreement") with NeoSan, aaiPharma Inc. hereby guaranties the performance by Neosan of Neosan's obligations under the Assignment Agreement and the Manufacturing Agreement, when and as due, subject to all defenses that Neosan may lawfully have with respect to any claims by Lilly. aaiPHARMA INC. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- Dated: --------------------------------- EXHIBIT C LOAN FACILITY HIGHLY-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SECURED CREDIT FACILITIES February [__], 2002 aaiPharma, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xx. Xxxxxx X. Tabbiner, D.B.A. Dear Mr. Tabbiner: You have advised Bane of America Securities LLC ("BAS") that aaiPharma, Inc. ("AAIPHARMA") intends to acquire the United States' rights to the Darvon(R) and Darvocet(R) branded product lines ("DARVON(R)") from Xxx Xxxxx and Company (the "ACQUISITION"). You have further advised us that you propose to finance a portion of the Acquisition (including the refinancing of existing indebtedness) and related fees and expenses from at least $[**] million in senior secured credit facilities (the "FINANCING") comprised of (i) term loan facilities aggregating $[_________] and (ii) a $[_________] million revolving credit facility. We are pleased to inform you that, based upon (and subject to) our understanding of the Acquisition and current market conditions and subject to the conditions set forth below, we are highly confident of our ability, as underwriter or placement agent, to sell or place the Financing in connection with the Acquisition. The structure, interest rate and yield, covenants and terms of, and the documentation for, the Financing will be as agreed upon by BAS and you based on market conditions at the time of the sale or placement and on the structure and documentation of the Acquisition and all the financing therefor. Our confidence in our ability to consummate the sale or placement of the Financing is subject to: (i) the principal economic terms and structure of the Acquisition and the related financing components being on the terms as described to BAS on the date hereof with such other terms and conditions reasonably acceptable to BAS and the execution of documentation relating thereto reasonably satisfactory in form and substance to BAS; (ii) there not having occurred any material adverse change or development in the condition (financial or otherwise), results of operations, business or prospects of aaiPharma and Darvon(R) (including, without limitation, any legal or regulatory change or development), since December 31, 2001 or in the business plan of aaiPharma as provided to BAS, in each case, in BAS' reasonable judgment; and (iii) no new material adverse information concerning aaiPharma or Darvon(R) having come to the attention of BAS subsequent to the signing of this letter. You acknowledge that BAS and its affiliates may share with each other any information related to you, (including information relating to creditworthiness), or the Acquisition or the financing therefor provided that BAS and such affiliates agree to hold any non-public information confidential in accordance with their respective customary policies related to non-public information and in accordance of BAS' obligations of non-disclosure and non-use to Xxx Lilly and Company. This letter is not intended to be and should not be construed as a commitment with respect to the underwriting, sale or placement of the Financing and creates no obligations or liability on our part or your part, or on the part of any of our respective affiliates, in connection therewith. This letter is only for your benefit and no other person or entity shall be a third party beneficiary of this letter. Except as otherwise required by law or unless BAS has otherwise consented in writing, you are not authorized to show or circulate this letter to any other person or entity other than your advisors and to Xxx Xxxxx and Company and its advisors. Very truly yours, BANC OF AMERICA SECURITIES LLC By: --------------------------------- Managing Director EXHIBIT D BOND FINANCING HIGHLY-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SUBORDINATED NOTES March 9, 2002 aaiPharma, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000
Appears in 2 contracts
Samples: Transfer and Assumption Agreement (Xanodyne Pharmaceuticals Inc), Transfer and Assumption Agreement (Xanodyne Pharmaceuticals Inc)
XXX LILLY AND COMPANY. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- EXHIBIT B GUARANTY Guaranty In consideration of Lilly's entering into that certain Assignment, Transfer and Assumption Agreement dated the __The undersigned hereby irrevocably elects to exercise ______ day Rights represented by this Right Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights and requests that certificates for such Preferred Shares be issued in the name of: Please insert social security or other identifying number:________________, 2002 (the "Assignment Agreement") with NeoSan Pharmaceuticals Inc. ("Neosan"), which is a wholly-owned subsidiary of aaiPharma Inc., and that certain Manufacturing Agreement dated the ________ day of ______________, 2002 (the "Manufacturing Agreement") with NeoSan, aaiPharma Inc. hereby guaranties the performance by Neosan of Neosan's obligations under the Assignment Agreement and the Manufacturing Agreement, when and as due, subject to all defenses that Neosan may lawfully have with respect to any claims by Lilly. aaiPHARMA INC. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- Dated: --------------------------------- EXHIBIT C LOAN FACILITY HIGHLY-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SECURED CREDIT FACILITIES February [__], 2002 aaiPharma, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xx. Xxxxxx X. Tabbiner, D.B.A. Dear Mr. Tabbiner: You have advised Bane of America Securities LLC ("BAS") that aaiPharma, Inc. ("AAIPHARMA") intends to acquire the United States' rights to the Darvon(R) and Darvocet(R) branded product lines ("DARVON(R)") from Xxx Xxxxx and Company (the "ACQUISITION"). You have further advised us that you propose to finance a portion of the Acquisition (including the refinancing of existing indebtedness) and related fees and expenses from at least $[**] million in senior secured credit facilities (the "FINANCING") comprised of (i) term loan facilities aggregating $[_________] and (ii) a $[_________] million revolving credit facility. We are pleased to inform you that_ _____________________________________________ (Please print name and address) _____________________________________________ If such number of Rights shall not be all the Rights evidenced by this Right Certificate, based upon a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other identifying number:_________________________________________________ _____________________________________________ (Please print name and subject toaddress) our understanding _____________________________________________ Dated:_______________________________ Signature_____________________________ Signature Guaranteed: Signatures must be guaranteed by a member firm of a registered national securities exchange, a member of the Acquisition National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States. Certificate The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement). After due inquiry and current market conditions and subject to the conditions best knowledge of the undersigned, the Rights evidenced by this Right Certificate were not acquired or beneficially owned by an Acquiring Person or an Affiliate or Associate thereof. Dated:_______________________________ Signature_____________________________ The signature in the Form of Assignment or Form of Election to Purchase, as the case may be, must conform to the name as written upon the face of this Right Certificate in every particular, without alteration or enlargement or any change whatsoever. In the event the certification set forth below, we are highly confident above in the Form of our abilityAssignment or the Form of Election to Purchase, as underwriter or placement agentthe case may be, to sell or place is not completed, the Financing in connection with the Acquisition. The structure, interest rate and yield, covenants and terms of, Company and the documentation forRights Agent will deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such Assignment or Election to Purchase will not be honored. Exhibit C SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES On July 20, 1998, the Financing will be as agreed upon by BAS and you based on market conditions at the time Board of the sale or placement and on the structure and documentation Directors of the Acquisition and all the financing therefor. Our confidence in our ability to consummate the sale or placement of the Financing is subject to: (i) the principal economic terms and structure of the Acquisition and the related financing components being on the terms as described to BAS on the date hereof with such other terms and conditions reasonably acceptable to BAS and the execution of documentation relating thereto reasonably satisfactory in form and substance to BAS; (ii) there not having occurred any material adverse change or development in the condition (financial or otherwise), results of operations, business or prospects of aaiPharma and Darvon(R) (including, without limitation, any legal or regulatory change or development), since December 31, 2001 or in the business plan of aaiPharma as provided to BAS, in each case, in BAS' reasonable judgment; and (iii) no new material adverse information concerning aaiPharma or Darvon(R) having come to the attention of BAS subsequent to the signing of this letter. You acknowledge that BAS and its affiliates may share with each other any information related to you, (including information relating to creditworthiness), or the Acquisition or the financing therefor provided that BAS and such affiliates agree to hold any non-public information confidential in accordance with their respective customary policies related to non-public information and in accordance of BAS' obligations of non-disclosure and non-use to Xxx Lilly and Company. This letter is not intended to be and should not be construed as a commitment with respect to the underwriting, sale or placement of the Financing and creates no obligations or liability on our part or your part, or on the part of any of our respective affiliates, in connection therewith. This letter is only for your benefit and no other person or entity shall be a third party beneficiary of this letter. Except as otherwise required by law or unless BAS has otherwise consented in writing, you are not authorized to show or circulate this letter to any other person or entity other than your advisors and to Xxx Xxxxx and Company (the "COMPANY") adopted a Shareholder Rights Plan (the "RIGHTS PLAN") to replace the expiring 1988 rights plan. The purpose of the Rights Plan is to deter certain coercive takeover tactics and enable the Board of Directors to represent effectively the interest of shareholders in the event of a takeover attempt. The Rights Plan does not deter negotiated mergers or business combinations that the Board of Directors determines to be in the best interests of the Company and its advisorsshareholders. Very truly yoursTo implement the Rights Plan the Board of Directors declared a dividend of one preferred share purchase right (a "RIGHT") for each outstanding share of common stock (the "COMMON SHARES") of the Company. The dividend was paid on July 28, BANC OF AMERICA SECURITIES LLC By: --------------------------------- Managing Director EXHIBIT D BOND FINANCING HIGHLY1998 to the shareholders of record on that date. Each Right entitles the registered holder to purchase from the Company one one-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SUBORDINATED NOTES March 9thousandth of a share of Series B Junior Participating Preferred Stock of the Company, 2002 aaiPharmawithout par value (the "PREFERRED SHARES"), Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxat a price of $325 per one one-thousandth of a Preferred Share, XX 00000subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement (the "RIGHTS AGREEMENT") between the Company and First Chicago Trust Company of New York, as Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Lilly Eli & Co)
XXX LILLY AND COMPANY. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- EXHIBIT B GUARANTY Guaranty In consideration of Lilly's entering into that certain Assignment, Transfer and Assumption Agreement dated the __The undersigned hereby irrevocably elects to exercise ______ day Rights represented by this Right Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights and requests that certificates for such Preferred Shares be issued in the name of: Please insert social security or other identifying number:________________, 2002 (the "Assignment Agreement") with NeoSan Pharmaceuticals Inc. ("Neosan"), which is a wholly-owned subsidiary of aaiPharma Inc., and that certain Manufacturing Agreement dated the ________ day of ______________, 2002 (the "Manufacturing Agreement") with NeoSan, aaiPharma Inc. hereby guaranties the performance by Neosan of Neosan's obligations under the Assignment Agreement and the Manufacturing Agreement, when and as due, subject to all defenses that Neosan may lawfully have with respect to any claims by Lilly. aaiPHARMA INC. By: ------------------------------------ Printed Name: -------------------------- Title: --------------------------------- Dated: --------------------------------- EXHIBIT C LOAN FACILITY HIGHLY-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SECURED CREDIT FACILITIES February [__], 2002 aaiPharma, Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xx. Xxxxxx X. Tabbiner, D.B.A. Dear Mr. Tabbiner: You have advised Bane of America Securities LLC ("BAS") that aaiPharma, Inc. ("AAIPHARMA") intends to acquire the United States' rights to the Darvon(R) and Darvocet(R) branded product lines ("DARVON(R)") from Xxx Xxxxx and Company (the "ACQUISITION"). You have further advised us that you propose to finance a portion of the Acquisition (including the refinancing of existing indebtedness) and related fees and expenses from at least $[**] million in senior secured credit facilities (the "FINANCING") comprised of (i) term loan facilities aggregating $[_________] and (ii) a $[_________] million revolving credit facility. We are pleased to inform you that_ _____________________________________________ (Please print name and address) _____________________________________________ If such number of Rights shall not be all the Rights evidenced by this Right Certificate, based upon a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other identifying number:_________________________________________________ _____________________________________________ (Please print name and subject toaddress) our understanding _____________________________________________ Dated:_______________________________ Signature_____________________________ Signature Guaranteed: Signatures must be guaranteed by a member firm of a registered national securities exchange, a member of the Acquisition National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States. Certificate The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement). After due inquiry and current market conditions and subject to the conditions best knowledge of the undersigned, the Rights evidenced by this Right Certificate were not acquired or beneficially owned by an Acquiring Person or an Affiliate or Associate thereof. Dated:________________________________ Signature_____________________________ The signature in the Form of Assignment or Form of Election to Purchase, as the case may be, must conform to the name as written upon the face of this Right Certificate in every particular, without alteration or enlargement or any change whatsoever. In the event the certification set forth below, we are highly confident above in the Form of our abilityAssignment or the Form of Election to Purchase, as underwriter or placement agentthe case may be, to sell or place is not completed, the Financing in connection with the Acquisition. The structure, interest rate and yield, covenants and terms of, Company and the documentation forRights Agent will deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such Assignment or Election to Purchase will not be honored. Exhibit C SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES On July 20, 1998, the Financing will be as agreed upon by BAS and you based on market conditions at the time Board of the sale or placement and on the structure and documentation Directors of the Acquisition and all the financing therefor. Our confidence in our ability to consummate the sale or placement of the Financing is subject to: (i) the principal economic terms and structure of the Acquisition and the related financing components being on the terms as described to BAS on the date hereof with such other terms and conditions reasonably acceptable to BAS and the execution of documentation relating thereto reasonably satisfactory in form and substance to BAS; (ii) there not having occurred any material adverse change or development in the condition (financial or otherwise), results of operations, business or prospects of aaiPharma and Darvon(R) (including, without limitation, any legal or regulatory change or development), since December 31, 2001 or in the business plan of aaiPharma as provided to BAS, in each case, in BAS' reasonable judgment; and (iii) no new material adverse information concerning aaiPharma or Darvon(R) having come to the attention of BAS subsequent to the signing of this letter. You acknowledge that BAS and its affiliates may share with each other any information related to you, (including information relating to creditworthiness), or the Acquisition or the financing therefor provided that BAS and such affiliates agree to hold any non-public information confidential in accordance with their respective customary policies related to non-public information and in accordance of BAS' obligations of non-disclosure and non-use to Xxx Lilly and Company. This letter is not intended to be and should not be construed as a commitment with respect to the underwriting, sale or placement of the Financing and creates no obligations or liability on our part or your part, or on the part of any of our respective affiliates, in connection therewith. This letter is only for your benefit and no other person or entity shall be a third party beneficiary of this letter. Except as otherwise required by law or unless BAS has otherwise consented in writing, you are not authorized to show or circulate this letter to any other person or entity other than your advisors and to Xxx Xxxxx and Company (the "Company") adopted a Shareholder Rights Plan (the "Rights Plan") to replace the expiring 1988 rights plan. The purpose of the Rights Plan is to deter certain coercive takeover tactics and enable the Board of Directors to represent effectively the interest of shareholders in the event of a takeover attempt. The Rights Plan does not deter negotiated mergers or business combinations that the Board of Directors determines to be in the best interests of the Company and its advisorsshareholders. Very truly yoursTo implement the Rights Plan the Board of Directors declared a dividend of one preferred share purchase right (a "Right") for each outstanding share of common stock (the "Common Shares") of the Company. The dividend was paid on July 28, BANC OF AMERICA SECURITIES LLC By: --------------------------------- Managing Director EXHIBIT D BOND FINANCING HIGHLY1998 to the shareholders of record on that date. Each Right entitles the registered holder to purchase from the Company one one-CONFIDENT LETTER [BANC OF AMERICA SECURITIES LLC LETTERHEAD] HIGHLY CONFIDENT LETTER - SENIOR SUBORDINATED NOTES March 9thousandth of a share of Series B Junior Participating Preferred Stock of the Company, 2002 aaiPharmawithout par value (the "Preferred Shares"), Inc. 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxat a price of $325 per one one-thousandth of a Preferred Share, XX 00000subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement") between the Company and First Chicago Trust Company of New York, as Rights Agent.
Appears in 1 contract
Samples: Rights Agreement (Lilly Eli & Co)
