Exhibit 4.35
$300,000,000
AmerisourceBergen Corporation
7 1/4% Senior Notes due 2012
PURCHASE AGREEMENT
November 12, 2002
Credit Suisse First Boston Corporation
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
As Representatives of the several Purchasers,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. AmerisourceBergen Corporation, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") U.S. $300,000,000 principal amount of its 7 1/4% Senior Notes due
2012 (the "Offered Securities"), to be issued under an indenture, dated as of
November 18, 2002 (the "Indenture"), among the Company, each of the subsidiary
guarantors named in Schedule D hereto (the "Guarantors") and X.X. Xxxxxx Trust
Company, National Association, as Trustee. The Offered Securities will be
guaranteed by each of the Guarantors, who will enter into a notation of
guarantee (each, a "Notation of Guarantee" and together, the "Subsidiary
Guarantees") pursuant to the terms of the Indenture. As a result of the
Subsidiary Guarantees, the Offered Securities will be unconditionally guaranteed
on a senior unsecured basis as to payment of principal, premium, if any,
liquidated damages, if any, and interest by each of the Guarantors. The United
States Securities Act of 1933 is herein referred to as the "Securities Act."
Holders (including subsequent transferees) of the Offered Securities
will have the registration rights set forth in the registration rights agreement
(the "Registration Rights Agreement"), to be dated the Closing Date, in
substantially the form of Exhibit I hereto, for so long as such Offered
Securities constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "Exchange
Offer Registration Statement") relating to the Company's 7 1/4% Senior Notes due
2012 (the "Exchange Securities"), in a like aggregate principal amount as the
Company issued under the Indenture
and guarantees thereof by the Guarantors (the "Exchange Security Guarantee"),
identical in all material respects to the Offered Securities and the Subsidiary
Guarantees and registered under the Securities Act to be offered in exchange for
the Offered Securities (such offer to exchange being referred to as the
"Exchange Offer") and the Subsidiary Guarantees thereof and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by certain
holders of the Offered Securities and to use its best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. The Offered Securities, the Exchange Securities, the Subsidiary
Guarantees and the Exchange Security Guarantees are referred to collectively as
the "Securities."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular (the
"Preliminary Offering Circular") and offering circular (the "Offering
Circular"), as supplemented as of the date of this Agreement, are
collectively referred to as the "Offering Document." On the date of
this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
Except as disclosed in the Offering Document, on the date of this
Agreement, the "Compensation of Directors," "Security Ownership of
Certain Beneficial Owners and Management," "Management" and "Certain
Transactions" sections from the proxy statement of the Company filed on
Form DEF 14A on January 23, 2002, the "Legal Matters and Contingencies"
section from the quarterly report of the Company filed on Form 10-Q on
August 14, 2002, and the "Description of Capital Stock" section from
the prospectus of the Company filed on Amendment 1 to Form S-3 on
September 7, 2001, filed with the Securities and Exchange Commission
(the "Commission") and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") do not include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. Such documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; except to the extent that the failure to be so qualified
or in good standing would not have a material adverse effect on the
condition (financial or other), business, properties or result of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(c) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company. Each subsidiary of
the Company has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
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Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification except to the
extent that the failure to be so qualified or in good standing would
not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, except for any lien or encumbrance on such capital stock to
secure the Company's obligations under the Credit Agreement (as
defined in the Offering Circular in the "Description of Notes"
section).
(d) The Indenture has been duly authorized by the Company and
each Guarantor, and the Subsidiary Guarantees have each been duly
authorized by the Company and each Guarantor, all of which are listed
on Schedule D hereto; the Offered Securities have been duly authorized;
and when the Offered Securities are delivered and paid for pursuant to
this Agreement on each Closing Date (as defined below) and duly
authenticated by the Trustee in accordance with the terms of the
Indenture, the Indenture will have been duly executed and delivered by
the Company and each Guarantor, such Offered Securities will have been
duly executed, authenticated, issued and delivered by the Company and
will conform in all material respects to the description thereof
contained in the Offering Document and the Indenture, when executed and
delivered by the Trustee, and such Offered Securities will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(e) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA" or "Trust Indenture Act"), and the rules
and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(f) Except as disclosed in the Offering Document, or as
contemplated by this Agreement, there are no contracts, agreements or
understandings between the Company and any person that would give rise
to a valid claim against the Company or any Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the
offer and sale of the Offered Securities.
(g) This Agreement has been duly authorized, executed and
delivered by the Company, has been duly authorized by each of the
Guarantors and, on the Closing Date, will have been duly executed and
delivered by each of the Guarantors.
(h) On the Closing Date, the Exchange Securities will have been
duly authorized by the Company; and when the Exchange Securities are
issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange Securities will be
entitled to the benefits of the Indenture and will be the valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(i) The Subsidiary Guarantee to be endorsed on the Offered
Securities, and the Exchange Security Guarantee to be endorsed on the
Exchange Securities, by each Guarantor have been duly authorized by
such Guarantor; and, when issued in accordance with the terms of the
Indenture, will have been duly executed and delivered by each such
Guarantor and will conform to the description thereof contained in the
Offering Document. When the Securities have been issued, executed and
authenticated in accordance with the terms of the Indenture, the
Subsidiary Guarantee and the Exchange Security Guarantee of each
Guarantor endorsed thereon will constitute valid and legally binding
obligations of such Guarantor, enforceable in accordance with its
terms, subject to
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bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(j) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of
the Guarantors. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights Agreement will be a
valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each Guarantor in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles. On the Closing Date, the Registration Rights Agreement will
conform in all material respects as to legal matters to the description
thereof in the Offering Circular.
(k) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except as would
not, individually or in the aggregate, have a Material Adverse Effect.
(l) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities by the Company except as described in or
contemplated by the Offering Document, and except for the order of the
Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement (each as defined in the Registration
Rights Agreement) effective.
(m) The execution, delivery and performance by the Company and
the Guarantors of the Indenture, the Subsidiary Guarantees, the
Exchange Security Guarantees, this Agreement and the Registration
Rights Agreement, as applicable, and the issuance and sale of the
Offered Securities and compliance by the Company with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company
or any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(n) Except as disclosed in the Offering Document, and for liens
and encumbrances under the Credit Agreement, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Offering Document, the Company
and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(o) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or
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modification of any such certificate, authority or permit that, is
reasonably likely to be determined adversely to the Company or any of
its subsidiaries, and if so adversely determined, would individually
or in the aggregate have a Material Adverse Effect.
(p) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(q) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, is
reasonably likely to be determined adversely to the Company or any of
its subsidiaries, and if so adversely determined, would individually or
in the aggregate have a Material Adverse Effect.
(r) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property which, to its knowledge, is contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws,
or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(s) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, is
reasonably likely to be determined adversely to the Company or any of
its subsidiaries, and if so adversely determined, would individually or
in the aggregate have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement and the Registration
Rights Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and, to the Company's knowledge, no
such actions, suits or proceedings are threatened.
(t) The financial statements included or incorporated by
reference in the Offering Document present fairly, in all material
respects, the financial position of the Company and its consolidated
subsidiaries and Bergen Xxxxxxxx Corporation ("Bergen") and its
consolidated subsidiaries as of the dates shown, and their respective
results of operations and cash flows for the periods shown, and, except
as otherwise disclosed in the Offering Document, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis and the assumptions used in preparing the pro forma financial
statements included or incorporated by reference in the Offering
Document provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(u) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included or
incorporated by reference in the Offering Document there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the
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Offering Document, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(v) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(w) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(x) Except as disclosed in the Offering Document,
contemplated by this Agreement or pursuant to the Company's 8 1/6%
Senior Notes due 2008 or AmeriSource's 5% Convertible Subordinated
Notes due 2007, there are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any
securities of the Company or such Guarantor that requires the Company
or such Guarantor to include such securities with the Securities and
Subsidiary Guarantees registered pursuant to any Registration
Statement.
(y) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve
System.
(z) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
or any Guarantor that it is considering imposing) any condition
(financial or otherwise) on the Company's or any Guarantor's retaining
any rating assigned to the Company or any Guarantor, any securities of
the Company or any Guarantor or (ii) has indicated to the Company or
any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the
Company, any Guarantor or any securities of the Company or any
Guarantor.
(aa) No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the
Company, the Guarantors or any of their respective representatives
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) in connection with the offer and sale of the
Offered Securities contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as
the Offered Securities have been issued and sold by the Company within
the six-month period immediately prior to the date hereof.
(bb) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S under the Securities
Act ("Regulation S") with respect to the Offered Securities or the
Subsidiary Guarantees.
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(cc) Assuming the accuracy of the Purchaser's representations
set forth in Section 4 hereof, the offer and sale by the Company and
the Guarantors of the Offered Securities and the Subsidiary Guarantees,
respectively, in the manner contemplated by this Agreement, to the
Purchasers and the Exempt Resales will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof
and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(dd) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) has offered or sold, or will offer or sell, the
Offered Securities in reliance on Regulation S other than in offshore
transactions.
(ee) The sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme by the Company, the Guarantors or any
of their respective affiliates or any person acting on its or their
behalf (other than the Purchasers, as to whom the Company and the
Guarantors make no representation) to evade the registration provisions
of the Securities Act.
(ff) Neither the Company, nor any of its affiliates (as
defined in Rule 501(b) of Regulation D), nor any person acting on its
or their behalf (other than the Purchasers, as to whom the Company and
the Guarantors make no representation) (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities, or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such securities sold in reliance on Rule 903 of Regulation S
("Regulation S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S, provided, however, that no representation
is made with respect to compliance by the Purchasers with the offering
restrictions requirement of Regulation S. The Company has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(gg) The proceeds to the Company from the offering of the
Offered Securities will not be used to purchase or carry any security
except as set forth in the Offering Document.
(hh) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 98.375% of the principal amount thereof
plus accrued interest from November 18, 2002 to the Closing Date (as hereinafter
defined), the respective principal amounts of Offered Securities set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities to be purchased by each Purchaser hereunder and to be offered
and sold by each Purchaser in reliance on Rule 144A under the Securities Act
(the "144A Securities") in the form of one or more permanent global securities
in registered form without interest coupons (the "Restricted Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. The Company will
deliver against payment of the purchase price the Offered Securities to be
offered and sold by the Purchasers in reliance on Regulation S (the "Regulation
S Securities") in the form of one or more permanent global Offered Securities in
registered form without interest coupons (the
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"Regulation S Global Securities") which will be deposited with the Trustee as
custodian for DTC for the respective accounts of the DTC participants for Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System ("Euroclear"), and Clearstream Banking societe anonyme
("Clearstream, Luxembourg") and registered in the name of Cede & Co., as nominee
for DTC. The Regulation S Global Securities and the Restricted Global Securities
shall be assigned separate CUSIP numbers. The Restricted Global Securities shall
include the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document. Until the termination of the restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities may only be held by
the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent global Securities will be held only in book-entry form through
Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the
limited circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by official check or
checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of AmerisourceBergen Corporation at the office of Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M., (New York time), on November 18,
2002, or at such other time not later than seven full business days thereafter
as CSFBC and the Company determine, such time being herein referred to as the
"Closing Date", against delivery to the Trustee as custodian for DTC of (i) the
Regulation S Global Securities representing all of the Regulation S Securities
for the respective accounts of the DTC participants for Euroclear and
Clearstream, Luxembourg and (ii) the Restricted Global Securities representing
all of the 144A Securities. The Regulation S Global Securities and the
Restricted Global Securities will be made available for checking at the above
office of Xxxxxx & Xxxxxxx at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally represents
and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the latest Closing Date,
only in accordance with Rule 903 or Rule 144A under the Securities Act
("Rule 144A"). Accordingly, neither such Purchaser nor its affiliates,
nor any persons acting on its or their behalf, have engaged or will
engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser
will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the
Offered Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
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Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally represents
and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities only in accordance with Rule
903 or Rule 144A under the Securities Act ("Rule 144A"). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on
its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S and Rule 144A.
(d) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(e) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Each Purchaser severally agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.
(f) Each of the Purchasers severally represents and agrees
that (i) it has not authorized the Offered Securities to be offered to
the public in the United Kingdom, within the meaning of the Public
Offers of Securities Regulation 1995, as amended; (ii) it has only
issued and passed on and will only issue and pass on in the United
Kingdom the Offering Document or any other document issued in
connection with the sale of the Offered Securities, to a person who is
of a kind described in Article 19 of the Financial Services and Markets
Xxx 0000 (Financial Promotion) Order 2001 or is a person to whom the
document may otherwise lawfully be issued or passed on; (iii) to the
extent it has directed the Offering Document to persons in the United
Kingdom, it has only directed the Offering Document at persons having
professional experience in matters relating to investments and it will
only make the offering described in the Offering Document available to
such persons and only such persons will be permitted to participate in
the offering; and (iv) it has complied and will comply with all
applicable provisions of the Financial Services and Markets Xxx 0000,
as amended, with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which consent
shall not be unreasonably withheld. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers,
any event occurs as a result of which the Offering Document as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly
9
will notify CSFBC of such event and promptly will prepare, at its own
expense, an amendment or supplement which will correct such statement
or omission. Neither CSFBC's consent to, nor the Purchasers' delivery
to offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
Preliminary Offering Circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC reasonably requests. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act,
the Company will promptly furnish or cause to be furnished to CSFBC
(and, upon request, to each of the other Purchasers) and, upon request
of holders and prospective purchasers of the Offered Securities, to
such holders and purchasers, a reasonable number of copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. The Company will pay the expenses of
printing and distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) To the extent that the Company's periodic reports under
the Exchange Act are not readily available in the Commission's XXXXX
system (or any successor thereto), or the Company no longer files
periodic reports under Section 13 or 15(d) of the Exchange Act, during
the period of five years hereafter, the Company will furnish to CSFBC
and, upon request, to each of the other Purchasers, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to
CSFBC and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to shareholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date or,
if earlier until such time as the Offered Securities are no longer
restricted securities (as defined in Rule 144 under the Securities
Act), the Company will, upon request, furnish to CSFBC, each of the
other Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date or,
if earlier until such time as the Offered Securities are no longer
restricted securities (as defined in Rule 144 under the Securities
Act), the Company will not, and will not permit any of its affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of the
Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date or,
if earlier until such time as the Offered Securities are no longer
restricted securities (as defined in Rule 144 under the Securities
Act), the Company will not be or become, an open-end investment
company, unit investment trust or face-amount certificate company that
is, or is required to be, registered under Section 8 of the Investment
Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its counsel; (ii) all expenses in connection with
the execution, issuance,
10
authentication, packaging and initial delivery of the Offered
Securities and, as applicable, the Exchange Securities (as defined in
the Registration Rights Agreement), the preparation and printing by the
Company's advisors and printers of this Agreement, the Registration
Rights Agreement, the Offered Securities, the Indenture, the Offering
Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable, the Exchange Securities; (iii) the cost
of listing the Offered Securities and qualifying the Offered Securities
for trading in The Portal(SM) Market ("PORTAL") and any expenses
incidental thereto; (iv) the cost of any advertising approved in
writing by the Company in connection with the issuance of the Offered
Securities; (v) any reasonable expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities or the Exchange Securities for sale under the
laws of such jurisdictions in the United States and Canada as CSFBC
designates and the printing of memoranda relating thereto; (vi) for any
fees charged by investment rating agencies for the rating of the
Securities or the Exchange Securities; and (vii) for expenses incurred
in distributing the Preliminary Offering Circulars and the Offering
Document (including any amendments and supplements thereto) to the
Purchasers. The Company will also pay or reimburse the Purchasers (to
the extent incurred by them) for all travel expenses of the Purchasers
and the Company's officers and employees and any other reasonable
expenses of the Purchasers and the Company in connection with attending
or hosting meetings between the Company and with prospective purchasers
of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities (which it agrees to do promptly after
such completion), neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any
person to purchase any Offered Securities; and neither it nor any of
its affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(j) Other than notes evidencing indebtedness under the Credit
Agreement or any of the Company's or its subsidiaries' securitization
facilities, for a period of 180 days after the date of the initial
offering of the Offered Securities by the Purchasers, the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue except issuances of Exchange
Securities pursuant to the Registration Rights Agreement. The Company
will not at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable to the
offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. For the purposes of
this section, all references to "subsidiaries" shall be deemed to
include all entities that are subsidiaries of the Company. The
obligations of the several Purchasers to purchase and pay for the
Offered Securities will be subject 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
obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received letters, dated the date
of this Agreement, from each of Deloitte & Touche LLP and Ernst & Young
LLP in agreed form confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("Rules and Regulations") in
form and substance previously agreed to by the Purchasers and their
counsel.
11
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers including CSFBC,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the interest of a majority in interest of the
Purchasers including CSFB, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York authorities; (vi) any
major disruption of settlements of securities or clearance services in
the United States; or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Purchasers including CSFBC, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated such
Closing Date, of Dechert, counsel for the Company, that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Offering Document; and, based solely on such
counsel's review of certificates of qualification to do
business as a foreign corporation, the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions set forth in an exhibit to
the opinion (which exhibit shall identify, based solely on a
certificate of an officer of the Company, each jurisdiction in
which the Company owns or leases material properties or
conducts material business) except to the extent that the
failure to be so qualified or be in good standing would not
have a Material Adverse Effect.
(ii) Each Guarantor incorporated or formed in the
State of California, the State of Connecticut, the State of
Delaware, the State of New Jersey, the State of New York or
the Commonwealth of Pennsylvania (the "Relevant Guarantors")
has been, to the extent a corporation, duly incorporated, and,
to the extent a limited liability company or limited
partnership, duly formed and is validly existing and in good
standing under the laws of the jurisdiction of its
incorporation or formation and has the corporate, limited
liability company or limited partnership power and authority
to own its property and to conduct its business as described
in the Offering Document; and each Relevant Guarantor, based
solely on such counsel's review of certificates of
qualification to do business as a foreign corporation, is duly
qualified to transact business and is in good standing in each
jurisdiction set forth in an exhibit to the opinion (which
exhibit shall identify, based solely on a certificate of an
officer of the Company, each jurisdiction in which the Company
or
12
any Relevant Guarantor owns or leases material properties or conducts
material business) except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and the Relevant Guarantors; the Offered
Securities have been duly authorized, executed and delivered by the
Company; the Subsidiary Guarantees have been duly authorized, executed
and delivered by the Relevant Guarantors; and the Indenture, the
Offered Securities and such Subsidiary Guarantees, when duly
authenticated by the Trustee in accordance with the terms of the
Indenture and delivered and paid for in accordance with the terms of
this Agreement, constitute valid and legally binding obligations of the
Company and the Relevant Guarantors, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(iv) Assuming that the Indenture and the Subsidiary Guarantees
have been duly authorized, executed and delivered by each Guarantor
other than the Relevant Guarantors, the Indenture and the Offered
Securities, when duly authenticated by the Trustee in accordance with
the terms of the Indenture and delivered and paid for in accordance
with the terms of this Agreement, constitute valid and legally binding
obligations of each Guarantor other than the Relevant Guarantors,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(v) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Circular, will not be an
"investment company" as defined in the Investment Company Act.
(vi) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
offer and sale of the Securities or the transactions contemplated by
the Registration Rights Agreement (subject to the assumptions set forth
in paragraph (xi) as it relates to the Securities Act and the Trust
Indenture Act), except such as may be required under state securities
or blue sky laws or regulations and, with respect to the Exchange Offer
Registration Statement, the Registration Rights Agreement and the
transactions contemplated thereunder, as may be required under the
Securities Act or the Exchange Act or the rules and regulations of the
Commission promulgated thereunder or the bylaws of the National
Association of Securities Dealers, Inc.
(vii) Except as set forth in, or incorporated by reference in,
the Offering Document, there are, to such counsel's knowledge, no
pending or threatened actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, is reasonably likely to be determined
adversely to the Company or any of its subsidiaries, and if so
adversely determined would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture,
this Agreement or the Registration Rights Agreement.
(viii) The execution, delivery and performance by the Company of
the Indenture, this Agreement and the Registration Rights Agreement, as
applicable, and the issuance and sale by the Company of the Offered
Securities and compliance with the terms and provisions thereof, will
not result in a breach or violation of any of the terms and provisions
13
of, or constitute a default under, (i) any statute, rule, regulation
applicable to the Company or, to such counsel's knowledge, order of
any governmental agency or body or any court having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties (other than a breach or violation that is not likely to
cause a Material Adverse Effect), (ii) any agreement or instrument,
set forth in an exhibit to the opinion (which exhibit shall identify,
based solely on a certificate of an officer of the Company, all
material agreements or instruments of the Company) (other than a
breach or violation that is not likely to cause a Material Adverse
Effect) or (iii) the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(ix) Such counsel has no reason to believe that the descriptions
in the Offering Circular under the caption "Description of the Notes,"
insofar as they purport to constitute a summary of the terms of the
Offered Securities, and under the captions "Certain United States
Federal Income Tax Consequences" and "Transfer Restrictions," insofar
as they purport to describe the provisions of the law and documents
referred to therein, do not summarize in all material respects the
matters referred to therein.
(x) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors.
(xi) Assuming (A) the accuracy of the representations and
warranties of the Company set forth in Items (w), (y), (aa), (bb),
(cc), (dd), (ee) and (ff) of Section 2 of this Agreement, (B) the due
performance by the Company of the agreements set forth in Section 5 of
this Agreement, (C) the accuracy of the representations and warranties
made by the Purchasers of the agreement set forth in Section 4 of this
Agreement, (D) compliance by the Purchasers with the offering and
transfer procedures and restrictions described elsewhere in this
Agreement and the Offering Document and (E) the accuracy of the
representations and warranties made in accordance with this Agreement
and the Offering Document by purchasers to whom the Purchasers
initially resell the Offered Securities, it is not necessary in
connection with (i) the offer, sale and delivery of the Offered
Securities by the Company to the several Purchasers pursuant to this
Agreement or (ii) the resales of the Offered Securities by the several
Purchasers in the manner contemplated by this Agreement, to register
the Offered Securities under the Securities Act (it being understood
that no opinion shall be expressed as to any resale subsequent to the
initial resale of the Offered Securities); and it is not necessary in
connection with the offer, sale, or delivery of the Offered Securities
to the initial Purchasers in the manner contemplated by the Purchase
Agreement or in connection with the Exempt Resales to qualify the
Indenture under the Trust Indenture Act.
(xii) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TIA"
or "Trust Indenture Act"), and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(xiii) The Exchange Securities and the Exchange Security
Guarantees have been duly authorized by the Company and each of the
Relevant Guarantors, as applicable.
(xiv) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each of the Relevant
Guarantors, and (assuming due authorization, execution and delivery by
the parties thereto other than the Company and the Relevant Guarantors)
is a valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium
14
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(xv) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company or any Guarantor and
any person granting such person the right to require the Company or
such Guarantor to file a registration statement under the Securities
Act with respect to any securities of the Company or such Guarantor and
to require the Company or such Guarantor to include such securities
with the Securities and Subsidiary Guarantees registered pursuant to
any Registration Statement.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion may be limited to the General
Corporation Law and the Limited Liability Company Act of the State of Delaware,
the New Jersey Business Corporation Act, the laws of the State of California,
the laws of the State of Connecticut, the laws of the State of New York, the
laws of the Commonwealth of Pennsylvania and the federal laws of the United
States.
Such counsel shall also state, in a separate letter, that, in the
course of preparation by the Company of the Offering Circular, such counsel has
participated in conferences with directors, officers and other representatives
of the Company, representatives of the independent public accountants for the
Company, representatives of the Purchasers and representatives of counsel for
the Purchasers, at which conferences the contents of the Offering Circular and
related matters were discussed and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Circular
(except as expressly provided above), and noting that they have relied as to
materiality to a large extent upon the statements of directors, officers and
other representatives of the Company, on the basis of the information that was
developed in the course of the performance of the services referred to above,
considered in light of such counsel's understanding of the applicable law, no
facts have come to such counsel's attention which has caused such counsel to
believe that as of the date of the Offering Document and at the Closing Date,
the Offering Circular contained an untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no view with
respect to the financial statements and the notes related thereto or any other
financial data, statistical data derived from financial data and accounting data
included or incorporated by reference in the Offering Circular).
(d) The Purchasers shall have received an opinion, dated the Closing
Date, of Dechert, counsel to the Company, for each Guarantor not incorporated or
formed under the laws of California, Connecticut, Delaware, New Jersey, New York
or Pennsylvania, that:
(i) each of the relevant Guarantors has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document;
(ii) each of the Subsidiary Guarantees has been duly authorized,
executed and delivered and each of the Exchange Securities Guarantees
has been duly authorized, in each case by each of the relevant
Guarantors that is a party hereto or thereto; and
(iii) the Indenture and the Registration Rights Agreement has been
duly authorized, executed and delivered by each of the relevant
Guarantors.
15
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
the jurisdiction in which the relevant Guarantors are chartered or
organized or the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel who are
satisfactory to counsel for the Purchasers, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the relevant Guarantors and public officials. Furthermore,
such counsel may assume, for the purpose of rendering such opinion, that
the laws of the jurisdiction in which the relevant Guarantors are
chartered or organized are identical to the laws of Delaware.
(e) The Purchasers shall have received from Xxxxxx & Xxxxxxx,
counsel for the Purchasers, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by
the several Purchasers as contemplated hereby and other related matters
as CSFBC may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the date of the most recent financial
statements included or incorporated by reference in the Offering
Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Offering Document or as
described in such certificate.
(g) The Purchasers shall have received letters, dated the
Closing Date, from each of Deloitte & Touche LLP and Ernst & Young LLP
which meet the requirements of subsection (a) of this Section, except
that the specified date referred to in such subsection will be a date
not more than five days prior to the Closing Date for the purposes of
this subsection.
(h) The Purchasers shall have received a certificate, dated
the Closing Date, of the Senior Vice President and Chief Financial
Officer of the Company stating that:
(i) as of September 30, 2002, the amount that would have
been available to the Company for Restricted Payments pursuant to the
second clause (3) of the first paragraph under the section "Description
of Notes -- Certain Covenants -- Restricted Payments" in the Offering
Document was $294.2 million; and
(ii) as of September 30, 2002, those subsidiaries of the
Company designated as "Designated Non-Guarantors" in an officers'
certificate delivered to the Purchasers and the Trustee pursuant to the
definition of "Designated Non-Guarantors" in the Indenture,
individually and in the aggregate, represent less than 3.0% of the
Company's consolidated total assets, consolidated stockholders' equity,
consolidated revenues, consolidated income from continuing operations
before income taxes and consolidated cash flows from operating
activities.
Documents described as being "in the agreed form" are
documents which are in the forms which have been initialled for the
purpose of identification by Xxxxxx & Xxxxxxx, copies of which are held
by the Company and CSFBC, with such changes as CSFBC may approve.
16
The Company will furnish the Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the
Purchasers reasonably request. CSFBC may in its sole discretion waive on
behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder.
7. Indemnification and Contribution.
(a) The Company and the Guarantors will, jointly and
severally, indemnify and hold harmless each Purchaser, its partners,
directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several,
to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related Preliminary Offering Circular or the
Exchange Act Reports, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability (i) arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and
agreed that the only such information consists of the information
described as such in subsection (b) below or (ii) results from the fact
that such Purchaser failed to deliver an Offering Circular, as then
amended or supplemented, (so long as the Offering Circular and any
amendment or supplement thereto was provided by the Company to the
Purchasers in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date) to the person
asserting any losses, claims, damages, liabilities or judgments caused
by any untrue statement or omission or alleged untrue statement or
omission of a material fact contained in any Preliminary Offering
Circular, and such untrue statement or alleged untrue statement or
omission was cured in the Offering Circular.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company, each Guarantor, their directors and
officers and each person, if any, who controls the Company or such
Guarantor within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company
or such Guarantor may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement
thereto, or any related Preliminary Offering Circular, or arise out of
or are based upon the omission or the alleged omission to state therein
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through
CSFBC specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Purchaser consists of
(i) the following information in the Offering Document furnished on
behalf of each Purchaser: under the caption "Plan of Distribution"
paragraphs three, ten and twelve and the third sentence of paragraph
nine; provided, however, that the Purchasers shall not be liable for
any
17
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of written notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party in writing will not
relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may elect by written notice, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party. After notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation
prior to assumption of defenses. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action and (ii) does not include a statement as to or an admission
of fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. 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 or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts, fees and commissions received by
such Purchaser exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company and the Guarantors under
this Section shall be in addition to any liability which the Company
and the Guarantors may otherwise have and shall
18
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section
shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company or the
Guarantors within the meaning of the Securities Act or the Exchange
Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by such
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase on such
Closing Date. If any Purchaser or Purchasers so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and arrangements satisfactory to CSFBC and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, if sent to the Company or the Guarantors, will be
mailed, delivered or telegraphed and confirmed to it at AmerisourceBergen
Corporation, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000-0000,
Attention: General Counsel; provided, however, that any notice to a Purchaser
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Representation of Purchasers. CSFBC, Banc of America Securities
LLC and X.X. Xxxxxx Securities Inc. will act for the several Purchasers in
connection with this purchase, and any action under this
19
Agreement taken by CSFBC, Banc of America Securities LLC and X.X. Xxxxxx
Securities Inc. jointly or by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company and the Guarantors hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
[SIGNATURE PAGE ATTACHED]
20
Very truly yours,
AmerisourceBergen Corporation
By /s/ X. X. Xxxxx
-------------------------------
Name: X.X. Xxxxx
Title: Vice President and Corporate
Treasurer
AmerisourceBergen Purchase Agreement
Very truly yours,
AmerisourceBergen Drug Corporation
AmerisourceBergen Services Corporation
AmeriSource Health Services Corporation
ASD Specialty Healthcare, Inc.
AutoMed Technologies, Inc.
Brownstone Pharmacy, Inc.
Capstone Pharmacy of Delaware, Inc.
Compuscript, Inc.
Computran Systems, Inc.
Xxxxxxxxxx Rx Services of Rhode Island, Inc.
Family Center Pharmacy, Inc.
Goot Nursing Home Pharmacy, Inc.
Health Services Capital Corporation
Insta-Care Pharmacy Services Corporation
ION, LLC
Xxxxx Xxxxxxxx Company, Inc.
Medical Initiatives, Inc.
MediDyne Corp.
Pharmacy Corporation of America, Inc.
Pharmacy Corporation of America-Massachusetts, Inc.
PharMerica Drug Systems, Inc.
PharMerica, Inc.
Premier Pharmacy, Inc.
Southwest Pharmacies, Inc.
The Lash Group, Inc.
Tmesys(TM), Inc.
By /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AmerisourceBergen Purchase Agreement
Very truly yours,
AmeriSource Heritage Corporation
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
AmerisourceBergen Purchase Agreement
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By Credit Suisse First Boston Corporation
By ___________________
Name:
Title:
AmerisourceBergen Purchase Agreement
SCHEDULE A
Principal Amount of
Offered Securities
------------------
Manager
-------
Credit Suisse First Boston Corporation ..................... $90,000,000
Banc of America Securities LLC ............................. 75,000,000
X.X. Xxxxxx Securities Inc. ................................ 75,000,000
Fleet Securities, Inc ...................................... 15,000,000
Mizuho International plc ................................... 15,000,000
Scotia Capital (USA) Inc ................................... 15,000,000
Wachovia Securities, Inc ................................... 15,000,000
------------
Total ............................ $300,000,000
============
25
SCHEDULE B
[List of Documents Delivered with
Offering Circular]
None
26
SCHEDULE C
[List of Subsidiaries]
Guarantor Entities
AmerisourceBergen Drug Corporation
AmerisourceBergen Services Corporation
AmeriSource Health Services Corporation
AmeriSource Heritage Corporation
ASD Specialty Healthcare, Inc.
AutoMed Technologies, Inc.
Brownstone Pharmacy, Inc.
Capstone Pharmacy of Delaware, Inc.
Compuscript, Inc.
Computran Systems, Inc.
Xxxxxxxxxx Rx Services of Rhode Island, Inc.
Family Center Pharmacy, Inc.
Goot Nursing Home Pharmacy, Inc.
Health Services Capital Corporation
Insta-Care Pharmacy Services Corporation
ION, LLC
Xxxxx Xxxxxxxx Company, Inc.
Medical Initiatives, Inc.
MediDyne Corp.
Pharmacy Corporation of America, Inc.
Pharmacy Corporation of America-Massachusetts, Inc.
PharMerica Drug Systems, Inc.
PharMerica, Inc.
Premier Pharmacy, Inc.
Southwest Pharmacies, Inc.
The Lash Group, Inc.
Tmesys(TM), Inc.
Receivables Subsidiaries
AmeriSource Receivables Financial Corporation
Blue Hill II, Inc.
Non-Guarantor Entities
Alliance Health Services, Inc.
Alliance Home Health Care, Inc.
AmeriSource Sales Corporation
ASD Hemophilia Management, LLC
ASD Hemophilia Program, L.P.
BBC Laboratories
BBC Operating Sub, Inc.
BBC Packing Corporation
BBC Special Packaging, Inc.
BBC Transportation Company
Bergen Xxxxxxxx Realty Services, Inc.
Xxxxxxx Acquisition Corporation
27
Blue Hill, Inc.
Capstone Med, Inc.
Century Advertising, Inc.
Choice Medical, Inc.
Committed Provider Services, LLC
Corrections Pharmacies Licensing Company, LLC
Corrections Pharmacies of California, LP
Corrections Pharmacies of Hawaii, LP
Corrections Pharmacies, LLC
DD Wholesale, Inc.
Drug Service, Inc.
Xxxxxxxxxx Drug, Inc.
Xxxxxxxxxx Rx Services of Massachusetts, Inc.
Express Pharmacy Services, Inc.
General Drug Company
Goot Westbridge Pharmacy, Inc.
Goot's Goodies, Inc.
Goot's Pharmacy & Orthopedic Supply, Inc.
Green Barn, Inc.
Healthcare Prescription Services, Inc.
Home Medical Equipment Health Company
Insta-Care Holdings, Inc.
Integrated Commercialization Solutions, Inc.
Inteplex, Inc.
Interfill, LLC
X.X. Xxxxxx, Inc.
K/S Instrument Corp.
LAD Drug Corporation
Lexicon Pharmacy Services, LLC
Los Angeles Drug Corporation
M.D.P. Properties, Inc.
Medical Health Industries, Inc.
Omni Med B, Inc.
Pharmacy Dynamics Group, Inc.
Pharmacy Healthcare Solutions, Ltd.
Pryzm, Inc.
Reimbursement Education Network, LLC
RightPak, Inc.
Rombro's Drug Center, Inc.
Southwestern Drug Corporation
Stadt Solutions, LLC
Telepharmacy Solutions, Inc.
The Xxxxx Company
Value Apothecaries, Inc.
28
SCHEDULE D
[List of Guarantors]
AmerisourceBergen Drug Corporation
AmerisourceBergen Services Corporation
AmeriSource Health Services Corporation
AmeriSource Heritage Corporation
ASD Specialty Healthcare, Inc.
AutoMed Technologies, Inc.
Brownstone Pharmacy, Inc.
Capstone Pharmacy of Delaware, Inc.
Compuscript, Inc.
Computran Systems, Inc.
Xxxxxxxxxx Rx Services of Rhode Island, Inc.
Family Center Pharmacy, Inc.
Goot Nursing Home Pharmacy, Inc.
Health Services Capital Corporation
Insta-Care Pharmacy Services Corporation
ION, LLC
Xxxxx Xxxxxxxx Company, Inc.
Medical Initiatives, Inc.
MediDyne Corp.
Pharmacy Corporation of America, Inc.
Pharmacy Corporation of America-Massachusetts, Inc.
PharMerica Drug Systems, Inc.
PharMerica, Inc.
Premier Pharmacy, Inc.
Southwest Pharmacies, Inc.
The Lash Group, Inc.
Tmesys(TM), Inc.
29
Exhibit I
[Form of Registration Rights Agreement]
30
