Exhibit 1.1
DEALER MANAGER AGREEMENT
July 16, 2003
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxx Partners LLC
c/o Deutsche Bank Securities Inc.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Medicis Pharmaceutical Corporation, a corporation organized under the
laws of the State of Delaware (the "COMPANY"), proposes to offer to exchange
(the "EXCHANGE OFFER") $1,230 in principal amount of the Company's Contingent
Convertible Senior Notes Due 2033 (the "NEW NOTES") for each $1,000 in principal
amount of the Company's 2.5% Contingent Convertible Senior Notes Due 2032 (the
"OLD NOTES") from the holders of such Old Notes (the "HOLDERS"), upon the terms
and subject to the conditions set forth in the Offer to Exchange (described in
the Exchange Offer Materials, as defined below). The New Notes will be
convertible into shares of our Class A common stock, par value $0.014 per share
(the "COMMON STOCK") prior to maturity, as provided in the Exchange Offer
Materials defined below. The New Notes will be issued pursuant to an Indenture
("NEW INDENTURE") between the Company and Deutsche Bank Trust Company Americas,
as trustee (the "TRUSTEE").
The Company hereby confirms its agreement with you as follows:
1. Registration Statement, Prospectus and Offering Materials. (a)
The Company has prepared and filed with the Securities and Exchange Commission
(the "COMMISSION"), under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder (collectively, the
"SECURITIES ACT"), a registration statement on Form S-4, including a Prospectus
(as hereinafter defined), covering the registration of the New Notes. The term
"REGISTRATION STATEMENT," as used in this Agreement, shall mean such
registration statement, including the exhibits thereto and any documents
incorporated by reference therein, in the form in which it becomes effective
and, in the event of any amendment or supplement thereto or the filing of any
abbreviated registration statement pursuant to Rule 462(b) of the Securities Act
relating thereto after the effective date of such registration statement, shall
also mean (from and after the effectiveness of such abbreviated registration
statement) such registration statement as so amended or supplemented, together
with any such abbreviated registration statement. The final prospectus included
in the Registration Statement (including any documents incorporated in the
Prospectus by reference) is herein called the "PROSPECTUS," except that if the
final Prospectus furnished to you for use in connection with the Exchange Offer
differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus furnished to you for such use.
The terms "supplement" and "amendment" or "supplemented" and "amended" as used
herein with respect to the Prospectus shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Prospectus and prior to the termination of the Exchange Offer by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
(the "EXCHANGE ACT").
(b) The Company has prepared and filed, or agrees that prior to or
on the date of commencement of the Exchange Offer (the "COMMENCEMENT DATE") it
will file, with the Commission under the Exchange Act a Tender Offer Statement
on Schedule TO with respect to the Exchange Offer, including the exhibits
thereto and any documents incorporated by reference therein. The term "SCHEDULE
TO" as used in this Agreement shall mean such Tender Offer Statement on Schedule
TO, including any amendment or supplement thereto.
(c) The Registration Statement, any preliminary prospectus, the
Prospectus, Schedule TO, the related Letter of Transmittal, the Notice of
Guaranteed Delivery, the Letter to Dealers, Commercial Banks, Trust Companies
and Other Nominees and the Letter to Our Clients, press releases and other
offering materials and information the Company may use, prepare, approve,
publicly disseminate, provide to registered or beneficial holders of the Old
Notes or authorize for use in connection with the Exchange Offer are herein
collectively referred to as the "EXCHANGE OFFER MATERIALS."
2. Use of Exchange Offer Materials. (a) The Exchange Offer
Materials have been or will be prepared and approved by, and are the sole
responsibility of the Company. The Company shall, to the extent permitted by
law, use its best efforts to disseminate the Exchange Offer Materials to each
registered holder of any Old Notes, as soon as practicable after the
Commencement Date, pursuant to Rule 13e-4 under the Exchange Act and comply in
all material respects with its obligations thereunder. Thereafter, to the extent
practicable until three days prior to the expiration date of the Exchange Offer,
the Company shall use its best efforts to cause copies of the Exchange Offer
Materials and a return envelope to be mailed to each person who becomes a holder
of record of any Old Notes. The Company acknowledges and agrees that you may use
the Exchange Offer Materials as specified herein and the Company represents and
warrants to you that you may rely on the accuracy and completeness of any
information delivered to you by or on behalf of the Company without assuming any
responsibility for independent verification of such information or without
performing or receiving any appraisal or evaluation of the assets or liabilities
of the Company.
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(b) The Company agrees to provide you with as many copies as you
may reasonably request of the Exchange Offer Materials. The Company agrees that
within a reasonable time prior to using or filing with any federal, state or
other governmental or regulatory agency or instrumentality (an "OTHER AGENCY"),
including the National Association of Securities Dealers Inc. (the "NASD"), of
any Exchange Offer Materials, it will submit copies of such materials to you and
your counsel and will give reasonable consideration to you and your counsel's
comments, if any, thereon. The Company agrees prior to the termination of the
Exchange Offer, before amending or supplementing the Registration Statement, or
the Prospectus, to furnish copies of drafts to, and consult with you and your
counsel within a reasonable time in advance of filing with the Commission of any
amendment or supplement to the Registration Statement, the Prospectus or the
other Exchange Offer Materials. The Company shall not file any such amendment or
supplement to which you shall reasonably object.
(c) The Company authorizes you to use the Exchange Offer Materials
in connection with the Exchange Offer and for such period of time as any such
materials are required by law to be delivered in connection therewith. You shall
not have any obligation to cause any Exchange Offer Materials to be transmitted
generally to the holders of Old Notes.
3. Retention. (a) The Company hereby retains you, and on the
basis of the representations, warranties and agreements of the Company contained
herein and subject to the terms and conditions hereof, you agree to act, as the
exclusive financial advisors and dealer managers (the "DEALER MANAGERS" or
"YOU") in connection with the Exchange Offer, until the earlier of the date of
the consummation of the Exchange Offer (the "CLOSING DATE") or September 30,
2003. As financial advisors and Dealer Managers, you agree, in accordance with
customary practice and applicable law, to perform those services in connection
with the Exchange Offer as are customarily performed by investment banks acting
in such roles in connection with exchange offers, including but not limited to
the following:
(i) assisting and advising in, and coordinating,
the timing, pricing and structure of the Exchange Offer;
(ii) assisting and advising the Company in
identifying and contacting Holders;
(iii) communicating generally regarding the
Exchange Offer with brokers, dealers, commercial banks, trust
companies and other persons, including the Holders; and
(iv) participating in discussions with Holders
regarding the Exchange Offer.
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(b) The Company shall use its reasonable best efforts to furnish
you, or cause the transfer agent or registrar, if any, for the Old Notes ("the
"TRANSFER AGENT AND REGISTRAR") to furnish you, as soon as practicable after the
Commencement Date, with the names of persons who were the holders of record of
Old Notes as of the Commencement Date and, to the extent available to the
executive officers of the Company, the beneficial holders of Old Notes as of the
Commencement Date, together with their addresses and the principal amount of Old
Notes held by them. Additionally, the Company shall use its reasonable best
efforts to update such information from time to time during the term of this
Agreement as requested by you and to the extent such information is available to
the Company within the time constraints specified. You shall act hereunder as an
independent contractor and nothing contained herein or in such information shall
make (x) you an agent of the Company or any of its affiliates or (y) the Company
or any of its affiliates, agents of you or any of your affiliates. Nothing
contained in this Agreement shall constitute you a partner of or joint venturer
with the Company or any of its affiliates.
(c) The Company agrees that any reference to the Dealer Managers
in any Exchange Offer Materials or in any press release or other document or
communication relating to the Exchange Offer or your activities in connection
therewith is subject to your prior approval, not to be unreasonably withheld or
delayed. If you resign or your engagement hereunder is terminated prior to the
dissemination of the Exchange Offer Materials or any other release or
communication, no reference shall be made therein to you. In the event that
applicable law requires a reference to the Dealer Managers after such
resignation or termination, the Company agrees to provide you with prompt notice
of such requirement and to provide you a reasonable opportunity to seek an
appropriate protective order or other remedy.
(d) The Company authorizes you to communicate with any information
agent (the "INFORMATION AGENT") or exchange agent (the "EXCHANGE AGENT")
appointed by the Company to act in such capacity in connection with the Exchange
Offer. The Company will arrange for the Exchange Agent to advise you, as
necessary and at least daily, as to such matters relating to the Exchange Offer
as you may reasonably request.
(e) In connection with the Exchange Offer, the Company agrees to
pay Deutsche Bank Securities Inc. and Xxxxxx Xxxxxx Partners LLC a fee in an
amount equal to 0.7995% and 0.7005%, respectively, of the aggregate principal
amount of New Notes issued pursuant to the Exchange Offer. Not withstanding the
foregoing, in the event that greater than 95% of the principal amount of the Old
Notes are accepted for exchange in the Exchange Offer, the Company agrees to pay
Deutsche Bank Securities Inc. and Xxxxxx Xxxxxx Partners LLC a fee in an amount
equal to 0.8395% and 0.7355%, respectively, of the aggregate principal amount of
New Notes issued pursuant to the Exchange Offer.
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(f) The Company agrees to reimburse Deutsche Bank Securities Inc.
promptly, upon demand made from time to time, for all reasonable out-of-pocket
expenses incurred in connection with your services as one of the Dealer Managers
for the Exchange Offer, including the reasonable fees and expenses of your
counsel, Xxxxx Xxxx & Xxxxxxxx, provided that the amount reimbursed for your
legal expenses shall not exceed the lesser of half of your legal expenses or
$100,000. If Deutsche Bank Securities Inc. withdraws pursuant to Section 7
hereof or terminates this Agreement pursuant to Section 9 hereof, it shall
nevertheless be entitled to receive reimbursement of all expenses pursuant to
this Section 3(f) which have accrued to the date of such withdrawal or
termination, as the case may be.
The Company shall perform its obligations to you set forth in this
Section 3(f) and in Section 8 hereof whether or not the Exchange Offer is
commenced or the Company exchanges any Old Notes pursuant to the Exchange Offer.
4. Certain Covenants. The Company covenants with each Dealer
Manager as follows:
(a) The Company will give you notice of its intention to amend or
supplement any Exchange Offer Materials, will furnish you with copies of such
amendment or supplement, and will not use any such amendment or supplement to
which you or your counsel shall reasonably object in writing or which is not in
compliance with the Securities Act, and the rules and regulations of the
Commission promulgated thereunder.
(b) If, during the Exchange Offer, any event occurs as a result of
which it shall, in the reasonable judgment of the Company or its counsel, or you
or your counsel, be necessary to amend or supplement any of the Exchange Offer
Materials in order 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, in the reasonable judgment of any such person, at any
time to amend or supplement any of the Exchange Offer Materials to comply in all
material respects with the Exchange Act or any other applicable law, rule or
regulation, such person shall promptly inform the Company and you, and (subject
to Section 4(a) above) the Company shall promptly prepare and furnish copies to
you of such amendments or supplements to such Exchange Offer Materials, so that
either (i) the statements in the Exchange Offer Materials, as so amended or
supplemented, will not, in the light of the circumstances under which they were
made, be misleading or (ii) such compliance is effected.
(c) The Company shall comply in all material respects with the
applicable provisions of the Exchange Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission promulgated
thereunder (the "TRUST INDENTURE ACT"), in connection with the Exchange Offer
Materials, the Exchange Offer and the transactions contemplated hereby and
thereby; the Company shall take on a timely basis all actions necessary or
legally
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required in relation to the Exchange Offer and all other actions contemplated by
this Agreement and by the Exchange Offer Materials, including the appropriate
authorization by the Company of any amendments or modifications of the Exchange
Offer.
(d) The Company shall notify you of the time when they propose to
commence the Exchange Offer or, after commencement, to extend the Exchange
Offer; and the Company shall advise or cause the Exchange Agent to advise you
upon your reasonable request from time to time during the period of, and
promptly after the expiration of the Exchange Offer, as to all names and
addresses of the Holders of the Old Notes which have been tendered, during the
immediately preceding day, indicating the aggregate principal amount of Old
Notes verified to be in proper form for tender, rejected for tender, and being
processed; the Company will notify you as promptly as practicable following
expiration of the Exchange Offer of the aggregate principal amount of Old Notes
in respect of which a tender has been verified to be in proper form, a tender
has been rejected, and which are being processed; and the Company shall promptly
give you notice of changes in the Expiration Date (as defined in the Letter of
Transmittal). No Old Notes shall be accepted for tender unless the conditions to
the obligations of the Dealer Managers set forth in Section 7 hereof have been
satisfied.
(e) The Company shall advise you promptly (upon becoming aware of
the same) of (i) the occurrence of any event, or the discovery of any fact,
which could reasonably be expected to cause the Company to amend, withdraw or
terminate the Exchange Offer, (ii) the occurrence of any event, or the discovery
of any fact, which could reasonably be expected to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) the issuance of any comment or order or the taking of any other
action by the Commission or any other governmental or regulatory agency with
respect to the Exchange Offer (and, if in writing, shall promptly furnish you a
copy thereof), (iv) the occurrence of any event, or the discovery of any fact,
which could reasonably be expected to cause the Company to amend or supplement
any of the Exchange Offer Materials, (v) the issuance or the threatened issuance
of any order or the taking of any other action by any administrative or judicial
tribunal or governmental agency or instrumentality concerning the Exchange Offer
(and, if in writing, will promptly furnish you a copy thereof) and (vi) any
other information relating to the Exchange Offer which you may from time to time
reasonably request.
(f) The Company shall not commence the mailing of the Exchange
Offer Materials unless the conditions set forth in Section 7 hereof with respect
to the commencement of the Exchange Offer shall have been satisfied and complied
with prior to or concurrently with the commencement of such mailing or shall
have otherwise been waived in writing by you.
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5. Expenses and Reimbursement of Expenses. In addition to the
obligation of the Company to pay the fees of each of the Dealer Managers and to
reimburse each of the Dealer Managers as provided in Subsection hereof, the
Company agrees to pay all costs and expenses incurred in connection with the
performance of their obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation all expenses
incident to the preparation, issuance, execution and delivery of the New Notes,
(ii) all advertising expenses related to the Exchange Offer, (iii) all fees and
expenses of the Exchange Agent and the Information Agent, (iv) all fees and
expenses of the Company's counsel, independent public or certified public
accountants and other advisors, (v) all fees, costs and expenses incurred in
connection with (A) the registration or qualification of the New Notes under the
laws of such jurisdictions as the Dealer Managers may designate, and (B) any
filing with the NASD, (vi) all costs and expenses incurred in connection with
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus (including financial statements,
exhibits, schedules, consents and certificates of experts, and amendments and
supplements thereto), and, under the Exchange Act, of the Schedule TO, (vii) all
costs and expenses incurred in connection with the printing (including word
processing and duplication costs), shipping, distribution and delivery of all
Exchange Offer Materials and (viii) all costs and expenses incurred by dealers
and brokers (including yourself), commercial banks, trust companies and nominees
for their customary mailing and handling expenses incurred in forwarding the
Exchange Offer Materials to their customers and (ix) the fees and expenses of
the Trustee pursuant to the New Indenture, and the fees, disbursements and other
charges of the Trustee's counsel in connection with the New Indenture.
6. Representations and Warranties. The Company represents and
warrants to each of you that as of the Commencement Date and the Closing Date,
as the case may be:
(a) Each preliminary prospectus, at the time of filing thereof,
complied in all material respects with the requirements of the Act and the last
preliminary prospectus distributed in connection with the Exchange Offer did
not, as of its date, and does not contain 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 light of the circumstances under which they were
made, not misleading; the Registration Statement will comply, during the time of
the Exchange Offer and when it becomes effective, in all material respects with
the requirements of the Securities Act and the Prospectus will comply, as of its
date and as of the Closing Date of the Exchange Offer, in all material respects
with the requirements of the Securities Act and any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have or will be so described or filed; the Registration
Statement, will not when it becomes effective, contain an untrue statement of a
material fact or omit to state a material
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fact required to be stated therein or necessary to make the statements therein
not misleading and the Prospectus will not, as of its date and during the time
of the Exchange Offer, contain 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 light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in any preliminary
prospectus, the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning either of the Dealer Managers and
furnished in writing by or on behalf of a Dealer Manager to the Company
expressly for use in any preliminary prospectus, the Registration Statement or
the Prospectus; and the Company has not distributed and will not distribute any
offering material in connection with the Exchange Offer other than the Exchange
Offer Materials;
(b) the Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with the
corporate power and authority to own or lease its properties and conduct its
business as described in the Exchange Offer Materials; each of the Company's
subsidiaries has been duly organized and is validly existing as a corporation or
other entity in good standing under the laws of the jurisdiction of its
incorporation or formation, with the corporate or other power and authority to
own or lease its properties and conduct its business as described in the
Exchange Offer Materials, except where the failure to have such power or to be
so authorized would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; the Company and each of its subsidiaries are
duly qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification and in which the failure to be
qualified would have a material adverse effect upon the Company and its
subsidiaries, taken as a whole;
(c) the issuance and exchange of the New Notes have been duly and
validly authorized by all necessary corporate action on the part of the Company,
and when executed, authenticated and delivered to the holders of Old Notes in
exchange for such notes, in accordance with the terms of this Agreement and the
New Indenture, the New Notes will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to the effects of
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and equitable principles of general applicability, and will be
entitled to the benefits of the Indenture;
(d) the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
the shares of Common Stock to be issued upon conversion of the New Notes have
been duly authorized and reserved, and when issued upon conversion of the New
Notes will be validly issued, fully paid and non-assessable; no preemptive
rights of stockholders exist with respect to any of the shares of Common Stock
to be issued upon conversion of the New Notes;
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(e) except as described in or contemplated by the Exchange Offer
Materials, there are no outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and there are no outstanding or
authorized options, warrants or rights of any character obligating the Company
to issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of such stock;
(f) the execution and delivery of, and the performance by the
Company of its obligations under, the New Indenture have been duly and validly
authorized by all necessary corporate action on the part of the Company and,
when duly executed and delivered by the Company and the Trustee, the New
Indenture will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and equitable principles of general applicability;
(g) all of the Common Stock issuable upon conversion of the New
Notes have been duly accepted for listing on The New York Stock Exchange,
subject to official notice of issuance;
(h) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement, any preliminary prospectus or the
Prospectus, 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
Exchange Act, and, when read together with the other information in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, at the time the Registration Statement and any amendments thereto
become effective and at the Commencement Date and the Closing Date, as the case
may be, did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the 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;
(i) the consolidated financial statements of the Company and its
consolidated subsidiaries, together with the related notes and schedules,
incorporated by reference in the Exchange Offer Materials, present fairly in all
material respects the financial position and the results of operations and cash
flows of the Company and its consolidated subsidiaries, at the indicated dates
and for the indicated periods; such financial statements and related schedules
have been prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair presentation of
results for such periods have been made; the summary financial and statistical
data of the Company and its subsidiaries included or incorporated by reference
in the Exchange Offer Material present fairly in all material respects the
information shown therein and
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such data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company;
(j) the Schedule TO has been prepared by the Company in conformity
in all material respects with the requirements of the Exchange Act and has been
filed with the Commission and the Company will file such additional amendments
to such Schedule TO as may hereafter be required. Copies of such Schedule TO,
including all amendments thereto and all documents incorporated by reference
therein have been or, if filed after the Commencement Date, will be delivered or
made available to you and your counsel prior to filing;
(k) Ernst & Young LLP, who has certified the financial statements
incorporated by reference in the Exchange Offer Materials is an independent
public accountant as required by the Securities Act and the applicable rules and
regulations thereunder;
(l) except as set forth in the Prospectus, there is no action,
suit, claim or proceeding pending or, to the Company's knowledge, threatened
against the Company or any of its subsidiaries before any court or
administrative agency or otherwise which, if determined adversely to the Company
or any of its subsidiaries, could reasonably be expected to result in any
material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and its subsidiaries, taken as a whole, or prevent the consummation
of the transactions contemplated hereby or in the New Indenture or New Notes;
(m) the Company and its subsidiaries have filed all Federal,
State, local and foreign tax returns which have been required to be filed and
have paid all taxes indicated by such returns and all assessments received by
any of them to the extent that such taxes have become due and to the extent that
any such taxes, or the failure so to file or pay, would not be material to the
Company and its subsidiaries, taken as a whole; all tax liabilities have been
adequately provided for in the financial statements of the Company, and the
Company does not know of any actual or proposed additional material tax
assessments;
(n) since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise), or prospects of the Company and its
subsidiaries, taken as a whole, whether or not occurring in the ordinary course
of business ("MATERIAL ADVERSE CHANGE"), and there has not been any material
transaction entered into or any material transaction that is probable of being
entered into by the Company or its subsidiaries, other than transactions in the
ordinary course of business and changes and transactions described in the
Prospectus; the Company and its consolidated subsidiaries have no material
contingent obligations that are not
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disclosed in the Company's financial statements which are incorporated by
reference in the Prospectus;
(o) neither the Company nor any of the Company's significant
subsidiaries, within the meaning of Regulation S-X 1.02(w) (the "SIGNIFICANT
SUBSIDIARIES"), is, or with the giving of notice or lapse of time or both, will
be, in violation of or in default under its certificate of incorporation or
by-laws; neither the Company nor any of its Significant Subsidiaries is, or with
the giving of notice or lapse of time or both, will be, in violation of or in
default under any agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it, or any of its properties, is
bound, which violation or default would have a material adverse effect on the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole; the execution and delivery of this Agreement,
the New Indenture and the New Notes, the issuance by the Company of the Common
Stock issuable upon conversion of the New Notes and the consummation of the
transactions herein and therein contemplated and the fulfillment of the terms
hereof and thereof (1) will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company or
any of its Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries or any of their respective properties is bound,
other than any such conflict, breach or default which will not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, (2) will
not result in any violation of the certificate of incorporation or by-laws of
the Company and (3) will not result in the violation of any law, order, rule or
regulation, judgment, order, writ or decree applicable to the Company or any of
its Significant Subsidiaries of any court or of any government, regulatory body
or administrative agency or other governmental body having jurisdiction;
(p) the execution and delivery of, and the performance by the
Company of its obligations under this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the Company;
(q) each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement, the New Indenture, the New Notes, the issuance of the
Common Stock issuable upon conversion of the New Notes, and the consummation of
the transactions herein and therein contemplated has been obtained or made and
is in full force and effect, except for such approvals, consents, orders,
authorizations, designations, declarations or filings to be obtained or made
prior to the Closing Date;
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(r) each of the Company and its subsidiaries hold all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of the business of the Company and its subsidiaries,
taken as a whole; except as set forth in the Prospectus, each of the Company and
its subsidiaries own or possess the right to use all material patents, patent
rights, trademarks, trade names, service marks, service names, copyrights,
license rights, know-how (including trade secrets and other unpatented and
unpatentable proprietary or confidential information, systems or procedures) and
other intellectual property rights ("INTELLECTUAL PROPERTY") necessary to carry
on the business of the Company and its subsidiaries, taken as a whole, in all
material respects; to the Company's knowledge, neither the Company nor any of
its subsidiaries has infringed any Intellectual Property of any other person or
entity; the Company has taken all reasonable steps necessary to secure interests
in such Intellectual Property from third parties; except as set forth in the
Prospectus, there are no outstanding options, licenses or agreements of any kind
relating to the Intellectual Property of the Company that are material to the
Company and its subsidiaries, taken as a whole; except as set forth in the
Prospectus, the Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property of any other person or
entity that are material to the Company and its subsidiaries, taken as a whole;
to the Company's knowledge, none of the technology employed by the Company has
been obtained or is being used by the Company in violation of any contractual
obligation binding on the Company or any of its subsidiaries or any of its
officers, directors or employees or otherwise in violation of the rights of any
persons; to the Company's knowledge, the Company has not received any written or
oral communications alleging that the Company has violated, infringed or
conflicted with, or, by conducting its business as set forth in the Prospectus,
would violate, infringe or conflict with, any of the Intellectual Property of
any other person or entity, except any such violation, infringement or conflict
that could not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; the Company knows of no
infringement by others of Intellectual Property owned by or licensed to the
Company;
(s) the Company and its subsidiaries comply in all material
respects with all Environmental Laws (as defined below), except to the extent
that failure to comply with such Environmental Laws would not, individually or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; neither the Company, nor any of its subsidiaries
is the subject of any pending or, to the Company's knowledge, threatened
federal, state or local investigation evaluating whether any remedial action by
the Company or any of its subsidiaries is needed to respond to a release of any
Hazardous Materials (as defined below) into the environment, resulting from the
Company's or any of its subsidiaries' business operations or ownership or
possession of any of their respective properties or assets or is in
contravention of any Environmental Law that could reasonably be expected,
individually or in the aggregate, to result in any material adverse effect on
the Company and its subsidiaries, taken as a whole;
12
neither the Company nor any of its subsidiaries has received any notice or claim
known to management of the Company, nor are there pending or, to the Company's
knowledge, threatened lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous Material
into the environment that could reasonably be expected in the aggregate to
result in a material adverse effect on the Company and its subsidiaries, taken
as a whole; as used herein, "ENVIRONMENTAL LAWS" means any federal, state or
local law or regulation presently applicable to the Company's or any of its
subsidiaries' business operations or ownership or possession of any of their
properties or assets relating to environmental matters, and "HAZARDOUS
MATERIALS" means those substances that are regulated by or form the basis of
liability under any Environmental Laws;
(t) except as set forth in the Prospectus, the Company and each of
its subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses;
(u) the Company is subject to and in compliance with the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act;
(v) the Company has not agreed to pay and does not know of any
outstanding material claims in the nature of a finder's fee, financial advisory
fee, origination fee or similar fee to be paid by it with respect to the
transaction contemplated hereby except as contemplated by this Agreement;
(w) the New Notes, the Class A Common Stock, and the New Indenture
each conform in all material respects to the description thereof contained in
the Exchange Offer Materials.
7. Conditions of the Dealer Managers' Obligations. Your
obligations as Dealer Managers hereunder are subject, as of the Commencement
Date and at all times on or prior to the Closing Date, to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
(a) You shall have received, on the Commencement Date and the
Closing Date, letters, dated the Commencement Date and the Closing Date as the
case may be, from Ernst & Young LLP, independent public or certified public
accountants for the Company, in form and substance satisfactory to you,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited and
13
unaudited consolidated financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(b) For the period from and the date of this Agreement and prior
to the Closing Date:
(i) the Registration Statement filed with the
Commission on the Commencement Date shall have become
effective prior to the Expiration Date of the Exchange Offer;
(ii) no stop order refusing or suspending the
effectiveness of the Registration Statement or any post
effective amendment shall have been issued or be in effect and
no proceedings for such purpose shall have been instituted or
threatened by the Commission and any request for additional
information shall have been complied with to the reasonable
satisfaction of your counsel; and
(iii) in the reasonable judgment of the Dealer
Managers, there shall not have occurred any Material Adverse
Change.
(c) On each of the Commencement Date (except with respect to
paragraphs 4 and 7, and paragraph 11 only as to the preliminary prospectus) and
the Closing Date, the Dealer Managers shall have received an opinion of Akin
Gump Xxxxxxx Xxxxx & Xxxx LLP, outside counsel for the Company, dated the
Closing Date, addressed to the Dealer Managers, the form of which is attached as
Exhibit A.
(d) On each of the Commencement Date and the Closing Date, the
Dealer Managers shall have received an opinion of Xxxxx Xxxx LLP, outside
counsel for the Company, dated the Closing Date, addressed to the Dealer
Managers, the form of which is attached as Exhibit B.
(e) On each of the Commencement Date and the Closing Date, the
Dealer Managers shall have received an opinion of Xxxx X. Xxxxx, Assistant
General Counsel of the Company, dated the Closing Date, addressed to the Dealer
Managers, the form of which is attached as Exhibit C.
(f) On each of the Commencement Date and the Closing Date, the
Dealer Managers shall have received from its counsel, Xxxxx Xxxx & Xxxxxxxx, an
opinion, in form and substance satisfactory to the Dealer Manager.
(g) On the Closing Date, you shall have received a certificate,
dated such date, of the chief executive officer or the chief financial officer
of the Company to the effect that:
14
(i) The representations and warranties in this
Agreement are true and correct in all material respects as if
made on and as of such date and the Company has performed all
covenants and agreements and satisfied all conditions on its
part to be performed or satisfied or prior to such date (after
giving effect to the Exchange Offer and the other transactions
contemplated by the Exchange Offer Materials); and
(ii) Subsequent to the date as of which
information is given in the Exchange Offer Materials (as
amended or supplemented), as of the date of such certificate,
there has not been any Material Adverse Change.
(h) On the Closing Date, the Company and the Trustee shall have
executed and delivered the New Indenture, which shall be reasonably satisfactory
in form and substance to you and Xxxxx Xxxx & Xxxxxxxx, your counsel, and the
New Indenture shall be in full force and effect.
(i) On the Closing Date, all conditions to the consummation of the
Exchange Offer set forth in the Exchange Offer Materials shall have been
satisfied in all material respects without waiver and all other transactions
contemplated by the Exchange Offer Materials to be consummated simultaneously
with or prior to the consummation of the Exchange Offer shall have been
consummated or shall be consummated simultaneously.
All such documents, certificates, schedules or instruments delivered
pursuant to this Section 7 will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to you and your counsel[s].
The Company shall furnish to you such conformed copies of such documents,
certificates, schedules and instruments in such quantities as you shall
reasonably request.
In the event that any of the foregoing conditions is not met when
required to be met, then each of you shall be entitled to withdraw as Dealer
Manager in connection with the Exchange Offer without any liability or penalty
to you or any other "indemnified party" (as defined in Section 8) and without
loss of any right to the payment of all expenses and fees otherwise payable
under this Agreement.
8. Indemnification.
(a) The Company agrees:
(i) to indemnify and hold harmless each Dealer
Manager and each person, if any, who controls any of the
Dealer Managers within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Dealer
15
Managers or any such controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out
of, in connection with or are based upon the performance by you of this
Agreement, an untrue statement or alleged untrue statement of a
material fact in any of the Exchange Offer Materials or an omission or
an alleged omission to state a material fact in any of the Exchange
Offer Materials necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or the
transmittal of the Exchange Offer Materials to Holders of Old Notes, or
which arise out of or are based upon any failure to accept Old Notes
properly tendered pursuant to the Exchange Offer; provided, however,
that the Company will not be liable to any indemnified party to the
extent that any claims, liabilities, losses, damages, costs or expenses
(A) are finally determined by a court of competent jurisdiction to have
resulted primarily from the gross negligence or willful misconduct of
such indemnified party or (B) arise out of or is based upon (x) an
untrue statement or alleged untrue statement of a material fact
contained in any of the Exchange Offer Materials or (y) any omission or
alleged omission to state in any of the Exchange Offer Materials a
material fact in any of the Exchange offer Materials necessary to make
the statements therein, in the light of the circumstances in which they
were made, not misleading, if in either such case such statement or
omission relates solely to the Dealer Managers and was made in reliance
upon and in conformity with information furnished in writing by the
Dealer Managers to the Company expressly for use therein. The Company
shall not be liable under this Section 8 for any settlement of any
claim or action effected without its prior written consent, which shall
not be unreasonable withheld.
(ii) to reimburse the Dealer Managers and each such
controlling person upon demand for any legal or other out-of-pocket
expenses reasonably incurred by the Dealer Managers or such controlling
person in connection with investigating or defending any such loss,
claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the Exchange Offer, whether
or not the Dealer Managers or the controlling person is a party to any
action or proceeding. In the event that it is finally judicially
determined that the Dealer Managers was not entitled to receive
payments for legal and other expenses pursuant to this subparagraph,
the Dealer Managers will promptly return all sums that had been
advanced pursuant hereto.
16
(b) The Dealer Managers will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Securities
Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any of the Exchange Offer Materials, (ii) the omission or the
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse upon demand any
legal or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the Exchange Offer, whether or not
the Company or any such director, officer or controlling person is a party to
any action or proceeding; provided, however, that the Dealer Managers will be
liable in each case to the extent, but only to the extent, in the case of
clauses (i) and (ii), that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in either or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of a Dealer Manager specifically for
use therein. This indemnity agreement will be in addition to any liability which
the Dealer Managers may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing. No
indemnification provided for in Section 8(a) or 8(b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or 8(b). In case any such proceeding 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 shall pay as
incurred (or
17
within 30 days of presentation) the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel reasonably acceptable to the indemnified
party within a reasonable period of time after notice of commencement of the
action. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by the Dealer
Managers 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(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought hereunder (whether
or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(d) To the extent the indemnification provided for in this Section
8 is unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
except by reason of the exceptions set forth in Section 8(a) or 8(b) the
failure of the indemnified party to give notice as required in Section 8(c),
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Dealer Managers on the other from the Exchange Offer. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Dealer Managers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable
18
considerations. The relative benefits received by the Company on the one hand
and the Dealer Managers on the other shall be deemed to be in the same
proportion as the total principal amount of the New Notes issued pursuant to the
Exchange Offer (before deducting expenses other than the fees to the Dealer
Managers) bears to the total fees received by the Dealer Managers. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Dealer Managers on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Dealer Managers agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim or enforcing any rights
hereunder.
(e) In any proceeding relating to the Exchange Offer Materials or
any supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon it by any other contributing party
and consents to the service of such process and agrees that any other
contributing party may join it as an additional defendant in any such proceeding
in which such other contributing party is a party.
(f) Except as otherwise provided in this Section 8, any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred (or within 30 days of
presentation). The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Dealer Manager or any
person controlling the Dealer Manager, the Company, their respective directors
or officers or any persons controlling the Company, (ii) consummation of the
Exchange Offer, and (iii) any termination of this Agreement. A successor to
either of the Dealer Managers, or any person controlling the Dealer Managers, or
to the Company, their respective directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
19
9. Termination. (a) This Agreement may be terminated (i) by the
Dealer Managers at any time upon notice to the Company if (A) the Company shall
mail or otherwise distribute or propose to mail or otherwise distribute any
supplement to any Exchange Offer Materials to which the Dealer Managers shall
reasonably object or which shall be reasonably disapproved by their counsel, (B)
at any time prior to the Closing Date, the Exchange Offer is terminated or
withdrawn for any reason (other than the failure of the Dealer Manager to
perform its obligations hereunder) or any restraining order or other injunctive
order shall have been issued or any action, suit or proceeding shall have been
commenced (other than those that are disclosed in the Exchange Offer Materials
on or prior to the date hereof) with respect to the Exchange Offer, this
Agreement or any of the other transactions contemplated by the Exchange Offer
Materials before any court or governmental authority which makes it inadvisable
for the Dealer Managers, in their reasonable discretion, to continue to act as
Dealer Managers hereunder, (C) any of the conditions specified in Section 7
shall not have been fulfilled or the representations and warranties under
Section 6 are incorrect in any material respect, or (D) there is a good faith
disagreement between the Dealer Managers on the one hand and the Company on the
other hand with respect to a material term or condition of the Exchange Offer or
the Exchange Offer Materials, or (ii) by the Company upon notice to the Dealer
Managers, if (A) there is a good faith disagreement between the Dealer Managers
on the one hand and the Company on the other hand with respect to a material
term or condition of the Exchange Offer or the Exchange Offer Materials, or (B)
the Company elects not to proceed with the Exchange Offer.
(b) Termination of this Agreement pursuant to this Section 9
shall be without liability of any party to any other party except as provided in
Section 11(a) hereof.
10. Notices. Any notices required to be given in writing pursuant
to any of the provisions of this Agreement shall be delivered as follows:
If to the Company:
Medicis Pharmaceutical Corporation
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
with a copy to: ((which shall not constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Older, Esq.
20
If to the Dealer Managers:
Deutsche Bank Securities, Inc.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: H. Xxxxxxx Xxxxx
with a copy to (which shall not constitute notice):
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
11. Miscellaneous. (a) The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of the Dealer Managers or any controlling person thereof, or by
or on behalf of the Company or its directors or officers or any controlling
person of the Company, or (iii) consummation of the Exchange Offer, and shall be
binding upon and shall inure to the benefit of any successors, assigns, heirs
and personal representatives of the Company, you and the indemnified parties
referred to in Section 8 hereof.
(b) This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(c) The section headings in this Agreement have been
inserted as a matter of convenience of reference only and are not a
part hereof.
(d) This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York
without regard to conflicts of laws principles thereof.
(e) This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, oral
or written, among the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended, modified or supplemented
without the prior written consent of each of the parties hereto.
21
(f) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic
and legal substance of the agreements contained herein is not affected
in any manner adverse to any party.
22
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Dealer Managers.
Very truly yours,
MEDICIS PHARMACEUTICAL
CORPORATION
By: /s/ Xxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ H. Xxxxxxx Xxxxx
------- ----------------------------------------
Name: H. Xxxxxxx Xxxxx
Title: Managing Director
XXXXXX XXXXXX PARTNERS LLC
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Partner, Director of Investment Banking
23
EXHIBIT A
FORM OF OPINION OF AKIN GUMP XXXXXXX XXXXX & XXXX LLP, COUNSEL FOR THE COMPANY
PURSUANT TO SECTION 7(c)
[ ], 2003
Based upon the foregoing, we are of the opinion that:
1. The Company is validly existing as a corporation, in good
standing under the Laws of the State of Delaware, with the power and
authority as a corporation to own or lease its properties and to conduct
its business as described in the Prospectus;
2. The statements under the caption "Description of The New
Notes," and "Description of Capital Stock" in the Prospectus, insofar as
such statements constitute a summary of the matters of law, provide a fair
and accurate summary in all material respects of such matters of current
law;
3. The Agreement has been duly authorized, executed and
delivered by the Company;
4. The New Indenture has been duly authorized, executed and
delivered by the Company, and assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability;
5. The issuance and exchange of the New Notes have been duly
and validly authorized by all necessary corporate action on the part of the
Company, and when executed, authenticated and delivered in accordance with
the terms of this Agreement and the New Indenture, the New Notes will be
valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to the effects of applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
equitable principles of general applicability, and will be entitled to the
benefits of the New Indenture;
6. The shares of Common Stock initially issuable upon
conversion of the New Notes have been duly authorized and reserved, and
when issued upon conversion of the New Notes will be validly issued, fully
paid and non-assessable; no statutory preemptive rights of stockholders
exist with respect to any of the shares of Common Stock to be issued upon
conversion of the New Notes;
7. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulation body is
required in connection with the execution and delivery of the Agreement,
the New
A-1
Indenture, the issuance and exchange of the New Notes, the issuance of the
Common Stock issuable upon conversion of the New Notes, and the
consummation of the transactions therein contemplated, except (i) such as
have been obtained or made, and (ii) as may be required by state securities
or Blue Sky laws, the National Association of Securities Dealers, Inc. The
New York Stock Exchange and the PORTAL Market (as to which we express no
opinion).
8. The Company is not, and after giving effect to the Exchange
Offer as described in the Prospectus will not be, required to register as
an "investment company" under the Investment Company Act of 1940, as
amended and the applicable rules and regulations thereunder;
9. The statements under the caption "Material U.S. Federal
Income Tax Considerations" in the Prospectus, insofar as such statements
constitute a summary of matters of United States Federal tax laws referred
to therein, provide a fair and accurate summary in all material aspects of
such matters under current law;
10. The Schedule TO has been prepared by the Company in
conformity in all material respects with the requirements of the Exchange
Act and has been filed with the Commission; such amendments to such
Schedule TO as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and
11. we advise you that, no information has come to our attention
that causes us to believe (i) that either the Registration Statement or the
Prospectus, at the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) that the preliminary prospectus
as of its date of issue and the Prospectus, as of the date of the
Prospectus and at all times subsequent thereto up to and on the date of
such opinion, as the case may be, 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 (it being understood that such
counsel need express no belief as to the financial statements or schedules
or other financial or statistical data derived therefrom, included or
incorporated by reference in the Registration Statement, the preliminary
prospectus, the Prospectus, the other Exchange Offer Materials, or any
amendments or supplements thereto, or as to that part of the Registration
Statement that constitutes the Form T-1).
A-2
EXHIBIT B
FORM OF OPINION OF XXXXX XXXX LLP, COUNSEL FOR THE COMPANY PURSUANT TO SECTION
7(d)
[ ], 2003
Based upon the foregoing, we are of the opinion that:
1. The execution and delivery of this Agreement and the New
Indenture, the issuance and exchange of the New Notes pursuant to the
Letter of Transmittal, the issuance of the Common Stock issuable upon
conversion of the New Notes, and the consummation of the transaction herein
and therein contemplated do not and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
the certificate of incorporation or by-laws of the Company, or any
indenture, mortgage, deed or trust or other agreement or instrument known
to such counsel or filed as an exhibit to the Company's most recent annual
report on Form 10-K or any subsequent quarterly report on Form 10-Q or any
law, order, rule or regulation, judgment, order, writ or decree applicable
to the Company or any of its subsidiaries of any court or any government,
regulatory body or administrative agency or other governmental body having
jurisdiction;
2. Each document filed, or to be filed prior to the closing of
the Exchange Offer, by the Company pursuant to the Exchange Act and
incorporated, or to be incorporated by reference in the Prospectus (or any
amendment or supplement thereto) at the time filed with the Commission
conformed, in all material respects with the Exchange Act and the
applicable rules and regulations thereunder; and
3. The Company has authorized and outstanding capital stock as
set fort in the Prospectus under the caption "Capitalization".
B-1
EXHIBIT C
FORM OF OPINION OF XXXX X. XXXXX, ASSISTANT GENERAL COUNSEL FOR THE COMPANY
PURSUANT TO SECTION 7(e)
[ ], 2003
1. Except as described in the Prospectus, there are no
outstanding securities of the Company convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares of capital stock of
the Company and there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any shares of its
capital stock or any securities convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of such stock;
2. The statements in "Part I, Item 1 - Business -License and
Royalty Agreements," "- Trademarks, Patents and Proprietary Rights" and "-
Government Regulation" and "Part I, Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference in the Offering
Memorandum, insofar as such statements purport to summarize documents or
proceedings referred to therein or matters of law, fairly summarize in all
material respects the information called for with respect to such documents and
matters;
3. Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of its subsidiaries
except as set forth the in the Prospectus and the documents incorporated by
reference therein; and
4. The execution and delivery of this Agreement and the New
Indenture, the issuance and exchange of the New Notes pursuant to the Letter of
Transmittal, the issuance of the Common Stock issuable upon conversion of the
New Notes, and the consummation of the transactions herein and therein
contemplated do not and will not conflict with any law, order, rule or
regulation, judgment, order, writ or decree applicable to the Company or any of
its subsidiaries of any court or any government, regulatory body or
administrative agency or other governmental body having jurisdiction.
C-1
