EXHIBIT 1.1
EXECUTION COPY
$350,000,000
LABORATORY CORPORATION OF AMERICA HOLDINGS
5 1/2% Senior Notes due February 1, 2013
PURCHASE AGREEMENT
------------------
January 28, 2003
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP XXXXX XXXXXXX INC.,
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. Laboratory Corporation of America Holdings, 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.$350,000,000 principal amount of
its 5 1/2% Senior Notes due February 1, 2013 ("Offered Securities") to be
issued under an indenture dated as of January 31, 2003 (the "Indenture"),
between the Company and Wachovia Bank, National Association, as Trustee on a
private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "Securities Act"), and hereby agrees
with the several Purchasers as follows:
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement of even date herewith among the Company
and the Purchasers (the "Registration Rights Agreement"), pursuant to which
the Company agrees to file a registration statement with the Securities
Exchange Commission (the "Commission") registering the issuance of Exchange
Securities (as defined herein) in exchange for the Offered Securities or,
under the circumstances described herein, the resale of the Offered
Securities under the Securities Act.
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 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, together with the documents incorporated
therein by reference and any other document approved by the Company for
use in connection with the contemplated resale of the Offered Securities,
are hereinafter 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 LLC ("CSFB") 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 Company's Annual Report on Form 10-K most recently filed with the
Commission and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission or
sent to shareholders pursuant to the Securities Exchange Act of 1934
(the "Exchange Act"), taken together, 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) [intentionally deleted]
(c) 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 where the failure to be so qualified individually or in the
aggregate would not have a material adverse effect on the business,
financial condition, properties or results of operations of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect").
(d) 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 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 where
the failure to be so qualified individually or in the aggregate 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.
(e) The Indenture has been duly authorized; the Offered Securities
have been duly authorized; and assuming due authorization, execution and
delivery of the Indenture and authentification of the Offered Securities,
in accordance with the Indenture, by the Trustee, when the Offered
Securities are delivered and paid for pursuant to this Agreement on the
Closing Date (as defined below), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document; and the Indenture
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.
(f) 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 for the filing of the
Exchange Offer Registration or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) and the order of the
Commission declaring such registration statement effective and such
consents, approvals, authorizations, orders or filings under state
securities or Blue Sky laws that the failure to obtain would not
individually or in the aggregate (i) have a Material Adverse Effect or
(ii) adversely affect in a material respect the ability of the Company
to perform its obligations under the Indenture, this Agreement or the
Registration Rights Agreement, or would otherwise be material in the
context of the sale of the Offered Securities.
(g) The execution, delivery and performance of the Indenture, this
Agreement, the Registration Rights Agreement, and the issuance and sale
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 of, or constitute a default under, (i) any statute, any 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 (ii) 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 (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,
except in the case of clause (i) or (ii), any such breach, violation or
default that would not (x) individually or in the aggregate have a
Material Adverse Effect or (y) prevent 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.
(h) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company.
(i) Except as disclosed in the Offering Document, 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 individually or in the
aggregate would have a Material Adverse Effect 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.
(j) 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 modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to have a Material Adverse Effect.
(l) 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, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.(m) Except as disclosed in the
Offering Document, neither the Company nor any of its subsidiaries is in
violation of any statute, any 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 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 could reasonably be expected to
lead to such a claim.
(n) 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, if
determined adversely to the Company or any of its subsidiaries, 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, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(o) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their 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 pro forma financial
statements included in the Offering Document were prepared in accordance
with the applicable requirements of the Securities Act and the rules and
regulations thereunder and include all adjustments necessary to present
fairly the pro forma financial position of the respective entity or
entities presented therein at the respective dates indicated and the
results of operations for the respective periods specified.
(p) Except as disclosed in the Offering Document, (i) since the
date of the latest audited financial statements included in the Offering
Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole whether or not arising
in the ordinary course of business; (ii) there have been no transactions
entered into by the Company or any of its subsidiaries which are material
to the Company and its subsidiaries, taken as a whole, other than those
entered into in the ordinary course of business or in connection with the
offering of the Offered Securities; (iii) except for changes occurring
in connection with the offering of the Offered Securities or pursuant to
the issuance or exercise of options pursuant to the Company's stock
option or other employment benefit plans described in the Offering
Document or conversion of outstanding securities described in the
Offering Document, there has been no material change in the capital
stock of the Company or any of its subsidiaries; and (iv) except as
disclosed in or contemplated by the Offering Document, there has been no
dividend or distribution of any kind declared, paid or made by the
Company or any of its wholly owned subsidiaries on any class of its
capital stock.
(q) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (XXXXX) system.
(r) 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.
(s) 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.
(t) Assuming the accuracy of the representations of the Purchasers
in Section 4 hereof and the due performance by the Purchasers of the
covenants and agreements set forth in Section 4 hereof, the offer and
sale of the Offered Securities by the Company to the several Purchasers
in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S; 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").
(u) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (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 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. 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.
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 98.599% of the principal
amount thereof plus accrued interest, if any, from January 31, 2003 to the
Closing Date (as hereinafter defined) the respective principal amounts 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 in the form of one or more permanent global securities in
definitive form (the "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. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the
Offered 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 CSFB and the Company drawn to the order of the Company at the
office of Cravath, Swaine & Xxxxx at 10 A.M. (New York time), on January 31,
2003, or at such other time not later than seven full business days thereafter
as CSFB and the Company determine, such time being herein referred to as the
"Closing Date", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of Cravath,
Swaine & Xxxxx 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 to only to
Qualified Institutional Buyers in accordance with Rule 144A ("Rule 144A") and
to certain offshore persons in reliance on Regulation S. 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 requirements of Regulation S and Rule 144A. Terms used
in this subsection (b) have the meanings given to them by Regulation S.
(c) 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.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities 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.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
ircumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered Securities to a
person who is of a kind described in Article 11(3) of the Financial Services
Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person
to whom such document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment
or supplementation without CSFB's consent. 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 will notify CSFB of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither CSFB'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 CSFB 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 CSFB requests, and the Company will furnish to CSFB on
the date hereof three copies of the Offering Document signed by a duly
authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. 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 CSFB (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,
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 use its best efforts to arrange for the
qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such states in the
United States as CSFB 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) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on
transfer applicable to the Securities.
(e) During the period of two years after the Closing Date, 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 otherwise than
pursuant to an effective registration statement under the Securities Act.
(f) During the period of two years after the Closing Date, 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.
(g) 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 professional advisers; (ii) all expenses in
connection with the execution, issue, 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 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 qualifying the
Offered Securities for trading in The PortalSM Market ("PORTAL") of The
Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the
cost of any advertising approved by the Company in connection with the
issue of the Offered Securities, (v) any 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 as CSFB designates and the printing of
memoranda relating thereto, (vi) any fees charged by investment rating
agencies for the rating of the Securities or the Exchange Securities,
and (vii) expenses incurred in distributing preliminary offering
circulars and the Offering Document (including any amendments and
supplements thereto) to the Purchasers. The Company will reimburse the
Purchasers for all expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(h) In connection with the offering, until CSFB shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, 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.
(i) For a period of 30 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 debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue. 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. 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 a letter, dated the date of
this Agreement, of PricewaterhouseCoopers LLP 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") and to the effect that:
(i) In their opinion the financial statements and schedules
examined by them and included in the Offering Document and in the
Exchange Act Reports comply as to form in all material respects
with the applicable accounting requirements of the Securities Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Offering Document and in the
Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included in
the Offering Document or in the Exchange Act Reports do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act
and the related published Rules and Regulations or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) the unaudited consolidated net sales, net
operating income, net income and net income per share
amounts for the nine-month periods ended September 30,
2001, and September 30, 2002, included in the Offering
Document do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets,
as compared with amounts shown on the latest balance sheet
included in the Offering Document; or
(D) for the period from the closing date of the
latest income statement included in the Offering Document
to the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period of
the previous year and with the period of corresponding
length ended the date of the latest income statement
included in the Offering Document, in consolidated net
sales, net operating income consolidated income before
extraordinary items or net income or in the ratio of
earnings to fixed charges; except in all cases set forth
in clauses (B) and (C) above for changes, increases or
decreases which the Offering Document disclose have
occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document
and the Exchange Act Reports (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
(v) on the basis of a reading of the pro forma
financial statements, carrying out certain specified
procedures, reading of minutes, inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
consolidated financial statements, nothing came to their
attention which caused them to believe that the pro forma
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the
Securities Act or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilations of such statements or on the pro forma basis
described in the notes thereto.
(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 CSFB, 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 on the
terms and in the manner described in the Offering Document; (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); (iii) any change
in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment 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 CSFB, 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 on the terms and in the
manner described in the Offering Document.
(c) The Purchasers shall have received an opinion, dated such
Closing Date, of Xxxxx & Xxxxxxx L.L.P., counsel for the Company, that:
(i) The Company is validly existing as a corporation and in
good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power to execute, deliver
and perform this Agreement, the Indenture and the Registration
Rights Agreement. The execution, delivery and performance by the
Company of this Agreement, the Indenture and the Registration
Rights Agreement have been duly authorized by all necessary
corporate action of the Company.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms.
(iv) The Offered Securities have been duly authorized and
executed by the Company and, assuming due authentication by the
Trustee and payment therefor, are duly issued and delivered by the
Company and constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms.
(v) This Agreement and the Registration Rights Agreement have
been duly executed and delivered on behalf of the Company.
(vi) The execution, delivery and performance by the Company of
this Agreement, the Indenture and the Registration Rights Agreement
do not (i) require any approval of its stockholders which has not
been obtained, (ii) violate the General Corporation Law of the
State of Delaware, as amended, or the Certificate of Incorporation
of the Company or the Bylaws of the Company, (iii) violate any
federal statute or regulation covered by such letter, or (iv) to
the best of such counsel's knowledge, violate any court or
administrative order, judgment or decree that names the Company and
is specifically directed to it or any of its property.
(vii) Based upon and assuming the accuracy of the
representations and warranties, and assuming due performance of the
covenants and agreements, of the Company and the Purchasers
contained in this Agreement, it is not necessary in connection with
the offer, sale and delivery of the Offered Securities to the
Purchasers under this Agreement, or in connection with the initial
resale of the Offered Securities in accordance with this Agreement
and the Offering Document, to register the Offered Securities under
the Securities Act of 1933 or to qualify the Indenture under the
Trust Indenture Act of 1939; it being understood that no opinion
need be expressed as to any resale of an Offered Security
subsequent to such initial resale thereof by the Purchasers.
(viii) The Offered Securities conform to the summary of the
terms thereof contained in the Offering Document under the caption
"Description of the Notes".
(ix) In addition to the matters set forth above, such letter
shall also contain a statement of such counsel to the effect that:
while counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements in the Offering
Document, no facts have come to such counsel's attention which have
resulted in such counsel having concluded that the Offering
Document, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading;
provided that in making the foregoing statements (which shall not
constitute an opinion), such counsel need not express any views as
to the financial statements and supporting schedules and other
financial information and data included in or omitted from the
Offering Document.
(d) The Purchasers shall have received an opinion, dated such
Closing Date, of Xxxxx X. Xxxx, General Counsel of the Company, that:
(i) The Company and each subsidiary (a) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its
business as described in the Offering Document and (c) is qualified
to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so
to qualify could not reasonably be expected to result in 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.
(ii) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement by
the Company (a) have been duly authorized by all requisite
corporate and, if required, stockholder action of the Company and
(b) will not (i) violate (A) any provision of law, statute, rule or
regulation of the United States of America or the Delaware General
Corporation Law or of the certificate or articles of incorporation
or other constitutive documents or by-laws of the Company or any
subsidiary, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which
the Company or any subsidiary is a party or by which any of them or
any of their property is bound, the effect of which could
reasonably be expected to result in a Material Adverse Effect or
would adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement or the Registration
Rights Agreement, or would otherwise be material in the context of
the sale of the Offered Securities, (ii) result in a breach of or
constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation
under any such indenture, agreement or other instrument, the effect
of which could reasonably be expected to result in a Material
Adverse Effect or would adversely affect the ability of the Company
to perform its obligations under the Indenture, this Agreement or
the Registration Rights Agreement, or would otherwise be material
in the context of the sale of the Offered Securities or (iii)
result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned by the Company or any
subsidiary.
(iii) No action, consent or approval of, registration or
filing with or any other action by any United States federal
Governmental Authority, or to the extent required under state law,
any state Governmental Authority, is required for the due
execution, delivery and performance by the Company of this
Agreement, the Indenture or the Registration Rights Agreement,
except for the filing of the Exchange Offer Registration Statement
or the Shelf Registration Statement and the order of the Commission
declaring such registration statement effective.
(iv) There are not any actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or
threatened or, to the best of such counsel's knowledge
contemplated, against or affecting the Company or any Subsidiary
that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in 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 or which are
otherwise material in the context of the sale of the Offered
Securities.
(v) The descriptions in the Offering Document of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required
to be shown.
(e) The Purchasers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities and 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 CSFB may require, and the Company shall have furnished to
such counsel such documents as they 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 date of the most recent financial statements
in the Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse change,
in the financial condition, 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 a letter, dated the Closing
Date, of PricewaterhouseCoopers LLP which meets 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 three days prior to
the Closing Date for the purposes of this subsection.The Company will
furnish the Purchasers with such conformed copies of such opinions,
certificates, letters and documents as the Purchasers reasonably request.
CSFB 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 will 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 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 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 CSFB
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; and provided, further, that with respect to any untrue statement or
alleged untrue statement in, or omission or alleged omission from, any
preliminary offering circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Purchaser that sold the
Offered Securities concerned to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an initial resale by
such Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to
such person, a copy of the Offering Document (exclusive of any material
included therein but not attached thereto) if the Company had previously
furnished copies thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company 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 CSFB 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 the following information in the Offering Document
furnished on behalf of each Purchaser: (i) the over-allotment and stabilizing
descriptions appearing in the ninth paragraph under the caption "Plan of
Distribution" and (ii) the following information in the Offering Document
furnished on behalf of the Purchasers: the information appearing in the tenth
paragraph under the caption "Plan of Distribution"; provided however, that the
Purchasers shall not be liable for 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.
(c) Promptly after receipt by an indemnified party under this Section
of 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 failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except
to the extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from
any liability that it may have to an 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 wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and 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. 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 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 price at which the Offered Securities purchased by it were
resold 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 under this Section shall be in
addition to any liability which the Company may otherwise have and shall
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 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 Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal
amount of the Offered Securities, CSFB 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 the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
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 the Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
the Offered Securities and arrangements satisfactory to CSFB 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 LLC, Xxx Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attention: Transactions Advisory Group, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Chief
Legal Officer; 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 hereto.
12. Representation of Purchasers. CSFB will act for the several
Purchasers in connection with this purchase, and any action under this
Agreement taken by CSFB 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 hereby submits 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 the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Purchasers in accordance with its terms.
Very truly yours,
LABORATORY CORPORATION OF AMERICA
HOLDINGS
By /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
The foregoing Purchase Agreement is hereby con-
firmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP XXXXX XXXXXXX INC.
Acting on behalf of themselves and as the
Representatives of the several Purchasers.
BY CREDIT SUISSE FIRST BOSTON LLC
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Director
SCHEDULE A
Principal Amount of
Purchaser Offered Securities
--------- -------------------
Credit Suisse First Boston LLC...................... $166,250,000
Banc of America Securities LLC..................... 52,500,000
UBS Warburg LLC..................................... 52,500,000
Wachovia Securities, Inc. .......................... 52,500,000
SunTrust Capital Markets, Inc. ..................... 17,500,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. . .................. 8,750,000
-----------------
Total............................... $350,000,000
=================
