EXHIBIT 1.1
CHATTEM, INC.
$200,000,000
8 7/8 SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
March 20, 1998
NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Chattem, Inc., a Tennessee corporation (the "Company"),
proposes to issue and sell to you (the "Initial Purchaser") $200,000,000 in
aggregate principal amount of its 8 7/8% Senior Subordinated Notes due 2008
(the "Notes"). The Notes will be fully and unconditionally guaranteed (the
"Guarantee" and, collectively with the Notes, the "Securities") on a senior
subordinated basis, by Signal Investment & Management Co. (the "Guarantor"
and, together with the Company, the "Issuers"). The Securities are to be
issued pursuant to an indenture, dated as of March 20, 1998 (the
"Indenture"), by and among the Company, the Guarantor and SouthTrust Bank,
National Association (the "Trustee").
The sale of the Securities to the Initial Purchaser will
be made without registration of the Securities under the Securities Act of
1933, as amended (the "Securities Act"), in reliance upon exemptions from
the registration requirements of the Securities Act. You have advised the
Issuers that you will offer and sell the Securities purchased by you
hereunder in accordance with Section 3 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Issuers
have prepared a preliminary offering memorandum, dated March 9, 1998 (the
"Preliminary Memorandum") and a final offering memorandum, dated March 20,
1998 (the "Final Memorandum"). Each of the Preliminary Memorandum and the
Final Memorandum sets forth certain information concerning the Issuers and
the Securities. The Issuers hereby confirm that they have authorized the use
of the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities
by the Initial Purchaser. Unless stated to the contrary, all references
herein to the Final Memorandum are to the Final Memorandum at the time of
execution and delivery of this Agreement (the "Execution Time") and are not
meant to include any amendment or supplement, or any information
incorporated by reference therein, subsequent to the Execution Time.
The Initial Purchaser and its direct and indirect
transferees will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Issuers will agree
to use their best efforts to commence an offer to exchange the Securities
for securities (the "Exchange Securities") that have been registered under
the Securities Act, and that otherwise are identical in all respects to the
Securities, or to cause a shelf registration statement to become effective
under the Securities Act and to remain effective for the period designated
in such Registration Rights Agreement.
The proceeds of the Securities will be used by the Company
to finance the acquisition by the Issuers of the Ban deodorant and
anti-perspirant product lines and certain related inventories and machinery,
plus the assumption of up to $5.0 million in liabilities of Xxxxxxx-Xxxxx
Squibb Company ("BAN") as described in the Final Memorandum.
1. Representations and Warranties. The Issuers jointly and severally
represent and warrant to the Initial Purchaser as follows:
(a) The Preliminary Memorandum, at the date thereof, did not
contain 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. The Final Memorandum, at the date
hereof, does not, and at the Closing Date (as defined below) will not (and any
amendment or supplement thereto, at the date thereof and at the Closing Date,
will not), contain 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; provided, however,
that the Issuers make no representation or warranty as to the information
relating to the Initial Purchaser contained in or omitted from the Preliminary
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Memorandum or the Final Memorandum, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing to the
Issuers by or on behalf of the Initial Purchaser specifically for inclusion
therein.
(b) Neither the Issuers, nor to their knowledge any of their
"Affiliates" (as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of the
Securities under the Securities Act. Neither the Issuers, nor to their knowledge
any of their Affiliates, nor any person acting on their behalf has engaged in
any form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities, provided,
that the Issuers make no representation in this sentence regarding the Initial
Purchaser. The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act. The Final Memorandum and each amendment or
supplement thereto, as of its date, contains the information specified in Rule
144A(d)(4) under the Act. The Issuers have been advised by the National
Association of Securities Dealers, Inc. ("NASD") that the Securities have been
designated Private Offerings, Resales and Trading through the Automated Linkages
Market ("PORTAL") eligible securities in accordance with the rules and
regulations of the NASD.
(c) None of the Issuers, nor to their knowledge any of their
respective Affiliates, or any person acting on its or their behalf (other than
the Initial Purchaser, as to whom the Issuers 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
Securities. The Securities offered and sold in reliance on Regulation S have
been and will be offered and sold only in offshore transactions, assuming the
accuracy of, and compliance with, the Initial Purchaser's representations,
warranties and agreements set forth in this Agreement. The sale of the
Securities pursuant to Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act. No registration under the
Securities Act of the Securities is required for the sale of the Securities to
the Initial Purchaser as contemplated hereby or for the Exempt Resales (as
defined below), assuming the accuracy of, and compliance with, the Initial
Purchaser's representations, warranties and agreements set forth in this
Agreement. The Securities sold pursuant to Regulation S will initially be
represented by a temporary global security as required by Rule 903 of Regulation
S. Notwithstanding the foregoing, no representation is made as to the activities
of the Initial Purchaser or any Affiliates of the Initial Purchaser.
(d) Neither the Company nor any of its subsidiaries is, or
will be after giving effect to the offering and sale of the Securities and the
application of the proceeds therefrom as described in the Final Memorandum, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act").
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(e) Assuming (i) that the representations and warranties and
covenants of the Initial Purchaser contained in Section 3 hereof are true and
correct and (ii) that the Initial Purchaser complies with its agreements
contained in Section 3 hereof, (A) registration under the Securities Act of the
Securities or qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), is not required in connection with
the offer and sale of the Securities to the Initial Purchaser in the manner
contemplated by the Final Memorandum or this Agreement and (B) initial resales
of the Securities by the Initial Purchaser on the terms and in the manner set
forth in the Final Memorandum and Section 3 hereof are exempt from the
registration requirements of the Securities Act.
(f) Since the respective dates as of which information is
given in the Preliminary Memorandum and the Final Memorandum, except as
otherwise stated therein, (i) there has been no material adverse change in the
condition (financial or otherwise), results of operations, affairs or business
prospects of the Company and its subsidiaries and BAN considered as a whole,
whether or not arising in the ordinary course of business and (ii) there have
been no material transactions entered into by the Company or any of its
subsidiaries (collectively, a "Material Adverse Change").
(g) The Company has received the consent of a majority of the
holders of its 12.75% Senior Subordinated Notes Due June 15, 2004 (the "Existing
Notes") not held by the Company or its affiliates to the amendment (the
"Proposed Amendment") of the indenture governing the Existing Notes (the
"Existing Indenture") described in the Company's Consent Solicitation Statement
dated March 16, 1998 (the "Consent Solicitation Statement"). Such consents are
sufficient under the Existing Indenture to permit the Issuers and the trustee
under the Existing Indenture to adopt a supplemental indenture giving effect to
the Proposed Amendment (the "Supplemental Indenture"). The Supplemental
Indenture, subject to the satisfaction of the conditions set forth therein, is
in full force and effect and each of the representations and warranties
contained in the Solicitation Agency Agreement between the Company and the
Initial Purchaser dated March 16, 1998 is true and correct.
(h) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the state of its
incorporation with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Preliminary Memorandum
and the Final Memorandum; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not,
singly or in the aggregate, reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), results of operations, affairs
or business prospects of the Company and its subsidiaries considered as a whole
(a "Material Adverse Effect").
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(i) The shareholders' equity in the Company at November 30,
1997, was as set forth in the "Actual" column under the caption "Capitalization"
in the Preliminary Memorandum and the Final Memorandum. All of the outstanding
shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. Attached as Schedule A hereto is a
complete and accurate list of each subsidiary of the Company. Each of the
subsidiaries of the Company has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization, has the
requisite power and authority to own, lease and operate its properties and
conduct its business as described in the Preliminary Memorandum and the Final
Memorandum and is duly qualified as a foreign organization to transact business
and is in good standing in each jurisdiction in which the conduct of its
business requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not, singly or in the aggregate,
reasonably be expected to 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, except
as described in the Preliminary Memorandum and the Final Memorandum, all shares
of capital stock of each subsidiary of the Company are owned by the Company
(except for directors' qualifying shares issued for Chattem (U.K.) Ltd. and HBA
Insurance Ltd.), directly or through subsidiaries of the Company, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
(j) This Agreement has been duly authorized, executed and
delivered by the Issuers and constitutes the valid and binding agreement of the
Issuers, enforceable against the Issuers in accordance with its terms, except
that (i) enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law) and (ii) the enforceability of any
indemnification or contribution provisions thereof may be limited under
applicable securities laws or the public policies underlying such laws.
(k) The Notes have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchaser in accordance
with this Agreement, will constitute the valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and
will be entitled to the benefits of the Indenture, except that enforcement
thereof may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(l) The Guarantees endorsed on the Notes have been duly
authorized by the Guarantor and when the Notes are executed and authenticated in
accordance with the
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provisions of the Indenture and delivered to the Initial Purchaser in accordance
with this Agreement, the Guarantees will constitute the valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with their terms, and will be entitled to the benefits of the Indenture, except
that enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law).
(m) The Indenture has been duly authorized by the Issuers.
When the Securities are delivered and paid for pursuant to this Agreement on the
Closing Date, the Indenture will have been duly executed and delivered by the
Issuers and, assuming the due execution and delivery thereof by the Trustee,
will constitute the valid and binding agreement of the Issuers, enforceable
against the Issuers in accordance with its terms, except that enforcement
thereof may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(n) The Exchange Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered, will be validly issued
and outstanding, and will constitute the valid and binding obligations of the
Issuers, entitled to the benefits of the Indenture and enforceable against the
Issuers in accordance with their terms, except that enforcement thereof may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
(o) The Registration Rights Agreement has been duly authorized
by the Company and the Guarantor and, when duly executed and delivered by the
Issuers (assuming the due execution and delivery by the Initial Purchaser), will
constitute the valid and binding agreement of the Issuers, enforceable against
the Issuers in accordance with its terms, except that (i) enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law) and (ii) the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable securities laws
or the public policies underlying such laws.
(p) On the Closing Date, the Credit Agreements (as defined in
the Final Memorandum), the guarantee of the obligations by the Company's
existing and future domestic subsidiaries and the pledge thereunder of the
assets and capital stock of each of the
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Company's existing and future domestic subsidiaries thereunder (a) shall have
been duly authorized, executed and delivered by the Company and the existing
domestic subsidiaries, respectively, and will constitute the valid and binding
agreement of the Company and the existing domestic subsidiaries, respectively,
enforceable against the Company and the existing domestic subsidiaries, as
applicable, in accordance with their terms, except that (i) enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general principles
of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law) and (ii) the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable securities laws
or public policies; and (b) shall be in full force and effect. On the Closing
Date, no event of default or event shall have occurred which, with the giving of
notice or passage of time or both, would constitute an event of default under
the Credit Agreements or the guarantees, or pledge agreements thereof by the
existing domestic subsidiaries, and all conditions to the extension of credit
thereunder shall have been satisfied without waiver.
(q) The asset purchase agreement, dated February 22, 1998,
between the Issuers and Xxxxxxx-Xxxxx Squibb Company, as amended by letter
agreements dated March 13, 1998 and March 20, 1998 (the "Acquisition Agreement")
pursuant to which the Company will purchase BAN, has been duly authorized,
executed and delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable against Xxxxxxx-Xxxxx Squibb Company in
accordance with its terms, except that (i) enforcement thereof may be subject to
(A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law). The
Acquisition Agreement is in full force and effect and there exists no breach by
any of the Issuers (to the extent that each is a party thereto) or, to the
knowledge of the Issuers, any other party of any representations or covenant
thereunder and no facts have come to the attention of the Issuers (to the extent
that each is a party thereto) that have led such Issuers to believe that the
conditions to the consummation of the transactions contemplated thereby will not
be satisfied in accordance with the terms thereof.
(r) The execution, delivery and performance of this Agreement,
the Indenture, the Registration Rights Agreement, the Supplemental Indenture,
the Acquisition Agreement and the Credit Agreements and the guarantees and
pledge agreements thereunder by the Issuers (to the extent each is a party
thereto), and the consummation of the Acquisition and the other transactions
contemplated hereby and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which either the Company or any of its
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subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the properties or assets of the Company or any of its
subsidiaries are subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any statute to which they may be subject or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets (except to the
extent any such conflict, breach, violation or default singly or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect);
and except for such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities and Blue Sky
laws in connection with the purchase and distribution of the Securities by the
Initial Purchaser or as set forth in the Registration Rights Agreement or such
consents which have been obtained, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this Agreement,
the Indenture, the Registration Rights Agreement, the Supplemental Indenture,
the Acquisition Agreement and the Credit Agreements and the Guarantees and
pledge agreements thereunder by the Issuers (to the extent each is a party
thereto), the consummation of the Acquisition and the other transactions
contemplated hereby and thereby, and the issuance and sale of the Notes and
Exchange Securities by the Issuers (except to the extent the failure to obtain
such consent would not reasonably be expected to have a Material Adverse
Effect).
(s) Neither the Company nor any of its subsidiaries is in
breach or violation of any of the terms or provisions of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries are subject, nor is the Company or any
of its subsidiaries in violation of the provisions of its respective charter or
by-laws or any statute or any judgment, order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, any of its
subsidiaries or any of their properties or assets (except to the extent any such
conflict, breach, violation or default is cured at or prior to the Closing Date
and within the grace period applicable thereto or would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect).
(t) As of the Closing Date, the Securities and the Indenture
will conform in all material respects to the descriptions thereof contained in
the Final Memorandum. As of the Closing Date, the provisions of the Registration
Rights Agreement and the Credit Agreements, to the extent that such provisions
are summarized in the Final Memorandum, will conform in all material respects to
the descriptions thereof contained in the Final Memorandum.
(u) Except as set forth in the Registration Rights Agreement,
there are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person granting such person the right to require the
Company or any of its subsidiaries to file a registration statement under the
Securities Act with respect to any securities owned or to be
8
owned by such person or to require the Company or any of its subsidiaries to
include such securities in any securities being registered pursuant to any
registration statement filed by the Company or any of its subsidiaries under the
Securities Act.
(v) Except as set forth in the Preliminary Memorandum and the
Final Memorandum, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending or, to the
knowledge of the Issuers, threatened against or affecting the Company, any of
its subsidiaries or BAN which would reasonably be expected to result in a
Material Adverse Change or, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect or materially and adversely affect the
offering of the Securities.
(w) The Company and each of its subsidiaries has good and
indefeasible title in fee simple to all real property and good and indefeasible
title to all personal property owned by it and necessary in the conduct of the
business of the Company or such subsidiary, in each case free and clear of all
liens, encumbrances and defects except (i) such as are referred to in the Final
Memorandum or (ii) such as do not materially and adversely affect the value of
such property to the Company or such subsidiary, and do not interfere with the
use made and proposed to be made of such property by the Company or such
subsidiary to an extent that such interference would, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All leases
to which the Company or its subsidiaries is a party are valid and binding, and
no default has occurred or is continuing thereunder which could, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect or
materially and adversely affect the offering of the Securities, and the Company
and its subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee (with such exceptions as do not
materially interfere with the use made by the Company or such subsidiary). The
Company and its subsidiaries possess adequate certificates, authorizations or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, and except as
set forth in the Final Memorandum, neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(x) Xxxxxx Xxxxxxxx LLP, which has certified certain financial
statements of the Company and its subsidiaries included in the Final Memorandum,
and, to the Issuers' knowledge, Price Waterhouse LLP, which has certified
certain financial statements of BAN, are independent public accountants within
the meaning of the Securities Act and the rules and regulations thereunder. The
financial statements included in the Preliminary Memorandum and the Final
Memorandum present fairly in all material respects the consolidated financial
position of (i) the Company and its subsidiaries, on a consolidated basis, and
(ii) the U.S.
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business of BAN, in each case as at the dates indicated and the results of their
respective operations and the changes in their financial position for the
periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein, and comply as to form
in all material respects with the requirements applicable to such financial
statements included in registration statements under the Securities Act. The
Company and each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
The pro forma financial statements included in the
Preliminary Memorandum and the Final Memorandum have been prepared on a
basis consistent with the historical financial statements of the Company and
its subsidiaries and the U.S. business of BAN, and give effect to
assumptions used in the preparation thereof on a reasonable basis and in
good faith and present fairly the historical and proposed transactions
contemplated by the Preliminary Memorandum and the Final Memorandum; and
such pro forma financial statements comply as to form in all material
respects with the requirements applicable to pro forma financial statements
included in registration statements on Form S-1 under the Act. The other pro
forma financial and statistical information and data included in the
Preliminary Memorandum and the Final Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with the
pro forma financial statements.
The historical and pro forma financial statements included
in the Preliminary Memorandum and the Final Memorandum constitute all of the
financial statements that would be required to be included in a registration
statement on Form S-1 under the Securities Act.
(y) Neither the Company nor any of its subsidiaries is now or,
after giving effect to the issuance of the Securities, and the application of
the proceeds thereof, will be (i) insolvent, (ii) left with unreasonably small
capital with which to engage in its anticipated businesses or (iii) incurring
debts beyond its ability to pay such debts as they become due.
(z) Except as would not reasonably be expected to have a
Material Adverse Effect, both before and immediately after giving effect to the
Acquisition, the Company
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and its subsidiaries own, or otherwise possess the right to use, all patents,
trademarks, service marks, trade names and copyrights, all applications and
registrations for each of the foregoing, and all other proprietary rights and
confidential information used in the conduct of their respective businesses as
currently conducted; and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with the rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse Effect.
(aa) The Company and its subsidiaries, both before and
immediately after giving effect to the Acquisition, are (i) in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(bb) No labor problem or disturbance with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Issuers,
is threatened which, singly or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(cc) Neither the Company nor any of its subsidiaries, nor, to
any Issuers' knowledge, any director, officer, agent, employee, stockholder or
other person, in any such case, acting on behalf of the Company or any of its
subsidiaries, has used any corporate funds during the last five years for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, payoff,
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influence payment, kickback or other payment that is unlawful.
(dd) Neither the Company nor any of its subsidiaries has
taken, and none of them will take, any action that would cause this Agreement or
the issuance or sale of the Securities and Exchange Securities to violate
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
or analogous foreign laws and regulations.
(ee) The Company and its subsidiaries have complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) relating to doing business with the Government of Cuba or with persons
or affiliates located in Cuba.
(ff) Other than as set forth on Schedule B hereto, neither the
Company nor any subsidiary is a party to any contract or agreement that would be
required to be filed with the Commission as an exhibit to a registration
statement on Form S-1 pursuant to entries (2), (4) and (10) of the Exhibit Table
of Item 601 of Regulation S-K under the Securities Act.
(gg) Neither Issuer nor, to the Issuers' knowledge, any
Affiliate of either Issuer has sold, offered for sale or solicited offers to buy
or otherwise negotiated in respect of any security (as defined in the Securities
Act) in a transaction would require the registration under the Securities Act of
the Securities.
(hh) Neither the Company nor any subsidiary is a "public
utility" or a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
2. Purchase and Sale. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Issuers agree to sell to the Initial Purchaser and the Initial
Purchaser agrees to purchase $200,000,000 in aggregate principal amount of
Securities, at a purchase price equal to 97% of the principal amount thereof.
The Issuers shall not be obligated to deliver any of the
Securities to be delivered except upon payment for all the Securities to be
purchased as provided herein.
3. Sale and Resale of the Securities by the Initial Purchaser. The
Initial Purchaser represents and warrants to the Issuers that:
(a) It will offer the Securities to be purchased hereunder
for resale only upon the terms and conditions set forth in this Agreement and
in the Final Memorandum.
(b) It (i) will not solicit offers for, or offer or sell,
the Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act, and
(ii) will solicit offers for the Securities only from, and will offer, sell or
12
deliver (the "Exempt Resales") the Securities, as part of its initial
offering, only to the following persons (each an "Eligible Purchaser"): (A)
persons whom the Initial Purchaser reasonably believes to be qualified
institutional buyers ("QIBs") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("Rule 144A") or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented
to the Initial Purchaser that each such account is a QIB, to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A,
(B) to a limited number of institutional accredited investors as defined in
Rule 501(a) (1), (2), (3) or (7) under Regulation D ("Accredited Investors")
that, prior to their purchase of the Securities, execute and deliver a letter
containing certain representations and agreements in the form attached as
Annex A to the Final Memorandum and (C) outside the United States in offshore
transactions in reliance on Regulation S.
(c) With respect to Securities sold in reliance on
Regulation S, (i) neither the Initial Purchaser nor any of its Affiliates nor
anyone acting on its behalf has offered or sold, or will offer or sell, any
Securities by means of any directed selling efforts (as defined in Rule 902
of Regulation S) in the United States and (ii) at or prior to confirmation of
all sales of Securities made in reliance on Regulation S, it will have sent
to each distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases the 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 a distribution thereof 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 an exemption from or in a transaction not subject to
the Securities Act. Terms used above have the meanings given them by
Regulation S."
The sale of the Securities to non-U.S. persons in offshore transactions is
not part of a plan or scheme to avoid the registration requirements of the
Securities Act.
(d) (i) It has not solicited, and will not solicit, offers
to purchase any of the Securities from, (ii) it has not sold, and will not
sell, any of the Securities to and (iii) it has not distributed, and will not
distribute, the Preliminary Memorandum or the Final Memorandum to, any person
or entity in any jurisdiction outside of the United States except, in each
case, in compliance in all material respects with all applicable laws of such
jurisdiction. For purposes of this Agreement, "United States" means the
United States of America, its territories, its possessions (including the
Commonwealth of Puerto Rico) and other areas subject to its jurisdiction.
13
(e) Unless prohibited by applicable law, (i) it will
furnish to each person to whom it offers any Securities a copy of the
Preliminary Memorandum (as amended or supplemented) or Final Memorandum or
(unless delivery of such Preliminary Memorandum is required by applicable
law) shall inform each such person that a copy of such Preliminary Memorandum
or the Final Memorandum will be available upon request and (ii) it will
furnish to each person to whom it sells Securities a copy of the Final
Memorandum (as then amended or supplemented by applicable law) and shall
inform each such person that a copy of such Final Memorandum will be
available upon request.
4. Delivery of and Payment for the Notes. Delivery of and
payment for the Securities shall be made at the office of Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M., New York City time, on March 24,
1998, or at such other date or place as shall be determined by agreement between
the Initial Purchaser and the Company. This date and time are sometimes referred
to as the "Closing Date." On the Closing Date, the Issuers shall deliver or
cause to be delivered the Securities to the Initial Purchaser for the account of
the Initial Purchaser against payment to or upon the order of the Company of the
purchase price by wire transfer in federal (same-day) funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Initial Purchaser
hereunder. Upon delivery, the Securities shall be in definitive fully registered
form and registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), or such other name or names and in such denominations as
the Initial Purchaser shall request in writing not less than one business day
prior to the Closing Date. For the purpose of expediting the checking and
packaging of the Securities, the Issuers shall make the Securities available for
inspection by the Initial Purchaser in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Closing Date.
5. Further Agreements of the Issuers. The Issuers jointly and
severally agree with the Initial Purchaser as set forth below in this Section
5:
(a) The Issuers will furnish to the Initial Purchaser,
without charge, as many copies of the Final Memorandum and any supplements
and amendments thereto as they may reasonably request.
(b) Prior to making any amendment or supplement to the
Preliminary Memorandum or the Final Memorandum, the Issuers shall furnish a
copy thereof to the Initial Purchaser and counsel to the Initial Purchaser
and will not effect any such amendment or supplement to which the Initial
Purchaser shall reasonably object by notice to the Company after a reasonable
period to review.
(c) If, at any time prior to completion of the distribution
of the Securities by the Initial Purchaser, any event shall occur or
condition exist as a result of which it
14
is necessary, in the opinion of counsel for the Initial Purchaser or counsel
for the Issuers, to amend or supplement the Final Memorandum in order that
the Final Memorandum will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it is necessary to amend or supplement
the Final Memorandum to comply with applicable law, the Issuers will promptly
prepare such amendment or supplement as may be necessary to correct such
untrue statement or omission or so that the Final Memorandum, as so amended
or supplemented, will comply with applicable law and furnish to the Initial
Purchaser such number of copies of such amendment or supplement as they may
reasonably request.
(d) So long as any Securities are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which the Issuers are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Issuers will furnish to holders of the Securities and
prospective purchasers of Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information, if any,
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) So long as the Securities and Exchange Securities are
outstanding, the Issuers will furnish to the Initial Purchaser copies of any
annual reports, quarterly reports and current reports filed with the
Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the SEC, and such other
documents, reports and information as shall be furnished by the Issuers to
the Trustee or to the holders of the Securities and Exchange Securities
pursuant to the Indenture.
(f) The Issuers will use their best efforts to qualify the
Securities for sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser reasonably designates and to continue
such qualifications in effect so long as reasonably required for the
distribution of the Securities. The Issuers will also arrange for the
determination of the eligibility for investment of the Securities under the
laws of such jurisdictions as the Initial Purchaser reasonably requests.
Notwithstanding the foregoing, the Issuers shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which they are not so
qualified or to file a general consent to service of process or to subject
themselves to taxation in respect of doing business in any jurisdiction in
which it is not otherwise subject.
(g) The Issuers will use their best efforts to permit the
Securities to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL market and to permit the Securities to
be eligible for clearance and settlement through DTC.
15
(h) Except following the effectiveness of any Registration
Statement (as defined in the Registration Rights Agreement) and except for
such offers as may be made as a result of, or subsequent to, filing such
Registration Statement or amendments thereto prior to the effectiveness
thereof, the Issuers will not, and will cause their Affiliates not to,
solicit any offer to buy or offer to sell the Securities by means of any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(i) The Company will apply the net proceeds from the sale
of the Securities as set forth in the Final Memorandum.
(j) The Issuers will take such steps as shall be necessary
to ensure that neither the Company nor any of its subsidiaries shall become
(i) an "investment company" within the meaning of the Investment Company Act
or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a
holding company within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(k) The Company and its subsidiaries will not, and will
cause their Affiliates not to, take any action that would require the
registration under the Securities Act of the Securities (other than pursuant
to the Registration Rights Agreement) including, without limitation, (i)
engaging in any directed selling efforts (within the meaning of Regulation S)
during any applicable restricted period or (ii) offering any other securities
in a manner that would be integrated with the transactions contemplated
hereby.
(l) Prior to the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement, if, in the
reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of
its affiliates are required to deliver an offering memorandum in connection
with sales of, or market-making activities with respect to, the Securities,
(A) the Issuers will periodically amend or supplement the Final Memorandum so
that the information contained in the Final Memorandum complies with the
requirements of Rule 144A of the Securities Act, (B) the Issuers will amend
or supplement the Final Memorandum when necessary to reflect any material
changes in the information provided therein so that the Final Memorandum will
not contain 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 existing as of the date the Final Memorandum is so
delivered, not misleading and (C) the Issuers will provide the Initial
Purchaser with copies of each such amended or supplemented Final Memorandum,
as the Initial Purchaser may reasonably request.
The Issuers hereby expressly acknowledge that the
indemnification and contribution provisions of Section 8 hereof are
specifically applicable and relate to each offering memorandum, registration
statement, prospectus, amendment or supplement
16
referred to in this Section 5(l).
(m) The Issuers will not terminate the consent solicitation
made pursuant to the Consent Solicitation Statement prior to 5:00 P.M. (New
York City time) on March 27, 1998 and from and after such date shall
consummate such consent solicitation as promptly as possible in accordance
with the terms of the Consent Solicitation Statement as in effect on the date
hereof.
(n) The Issuers will do all things reasonably necessary to
satisfy the closing conditions set forth in Section 7 hereof.
6. Expenses. The Issuers, jointly and severally, agree to pay (a)
the costs incident to the authorization, issuance, sale and delivery of the
Securities and Exchange Securities and any issue or stamp taxes payable in
that connection, (b) the costs incident to the preparation and printing of
the Preliminary Memorandum, the Final Memorandum and any amendments,
supplements and exhibits thereto, (c) the costs of distributing the
Preliminary Memorandum, the Final Memorandum and any amendment or supplement
thereto, (d) the fees and expenses of qualifying the Securities and Exchange
Securities under the securities laws of the several jurisdictions as provided
in Section 5(f) and of preparing, printing and distributing a Blue Sky
Memorandum (including reasonable related fees and expenses of counsel to the
Initial Purchaser), (e) the cost of printing the Securities and the Exchange
Securities, (f) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of any counsel for the Trustee in
connection with the Indenture and the Securities and Exchange Securities, (g)
any fees paid to rating agencies in connection with the rating of the
Securities and Exchange Securities, (h) the costs and expenses of DTC and its
nominee, including its book-entry system, (i) all expenses and listing fees
incurred in connection with the application for quotation of the Securities
on the PORTAL market and (j) all other costs and expenses incident to the
performance of the obligations of the Issuers under this Agreement, including
the fees and expenses of Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser.
7. Conditions of Initial Purchaser's Obligations. The obligations of
the Initial Purchaser to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Issuers
contained herein at the Execution Time and the Closing Date, to the accuracy
of the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations
hereunder in all material respects and to the following additional conditions:
(a) The Initial Purchaser shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the Final
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx, counsel for
the Initial Purchaser, is material or omits to state a fact which, in the
17
opinion of such counsel, is material and is necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) The Final Memorandum shall have been printed and copies
distributed to the Initial Purchaser as soon as practicable but in no event
later than on the Business Day following the date of this Agreement or at
such later date and time as to which the Initial Purchaser may agree, and no
stop order suspending the qualification or exemption from qualification of
the Securities in any jurisdiction referred to in Section 5(f) shall have
been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect; no
action, suit or proceeding shall have been commenced and be pending against
or affecting or, to the knowledge of the Company, threatened against, the
Company or any of its subsidiaries or BAN before any court or arbitrator or
any governmental body, agency or official that, singly or in the aggregate,
if adversely determined, would reasonably be expected to result in a Material
Adverse Effect; and no stop order shall have been issued by the SEC or any
governmental agency of any jurisdiction referred to in Section 5(f)
preventing the use of the Final Memorandum, or any amendment or supplement
thereto, or which would reasonably be expected to have a Material Adverse
Effect.
(d) Since the dates as of which information is given in the
Final Memorandum and other than as set forth in the Final Memorandum, (i)
there shall not have been any Material Adverse Change, or any development
that is reasonably likely to result in a Material Adverse Change, or any
material change in the long-term debt, or material increase in the short-term
debt, from that set forth in the Final Memorandum, (ii) no dividend or
distribution of any kind shall have been declared, paid or made by the
Company on any class of its capital stock and (iii) neither the Company and
its subsidiaries nor BAN shall have incurred any liabilities or obligations,
direct or contingent, that are material, individually or in the aggregate, to
the Company and its subsidiaries and BAN, taken as a whole, and that are
required to be disclosed on a balance sheet or notes thereto in accordance
with generally accepted accounting principles and are not disclosed on the
latest balance sheet or notes thereto included in the Final Memorandum.
(e) The Initial Purchaser shall have received a
certificate, dated the Closing Date, signed on behalf of the Company by (i)
the chief executive or chief operating officer and (ii) a principal financial
or accounting officer of the Company and the Guarantor, confirming that (A)
such officers have participated in conferences with other officers and
representatives of the Issuers, representatives of the independent public
accountants of the Issuers
18
and representatives of counsel to the Issuers, at which the contents of the
Final Memorandum and related matters were discussed and (B) the matters set
forth in paragraphs (b), (c), (d) and (e) of this Section 7 are true and
correct as of the Closing Date.
(f) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Securities, the Exchange Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum, the Credit Agreements, the Acquisition
Agreement and all other legal matters relating to this Agreement and the
transactions contemplated hereby and thereby, shall be reasonably satisfactory
in all material respects to counsel for the Initial Purchaser, and the Issuers
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(g) Xxxxxx & Xxxxxx, LLP, counsel for the Issuers, shall
have furnished to the Initial Purchaser its written opinion (containing
customary limitations and approvals that shall be reasonably satisfactory in
all material respects to the Initial Purchaser's counsel), addressed to the
Initial Purchaser and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchaser, to the effect that:
(i) The Company and the Guarantor are validly
existing as a corporation and is in good standing under the laws of its
jurisdiction of incorporation. The Company and the Guarantor are duly
qualified to do business and in good standing as foreign organization in each
jurisdiction with respect to which it has certified to us that they own
property, maintain business or have employees (except where failure to so
qualify would not, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect).
(ii) Assuming (i) the accuracy of and compliance
with the representations, warranties and covenants of the Issuers set forth
in Section 1 of this Agreement and (ii) the accuracy of and compliance with
the Initial Purchaser's representations, warranties and covenants set forth
in this Agreement, the offer, issuance, sale and delivery of the Securities
to the Initial Purchaser, and the initial reoffer, resale and delivery of the
Securities by the Initial Purchaser, as contemplated by this Agreement and
the Final Memorandum, do not require registration under the Securities Act,
or qualification of the Indenture under the Trust Indenture Act, it being
understood that no opinion is expressed as to any subsequent resale of
Securities or any resale of Securities by any person other than the Initial
Purchaser.
(iii) Each of the Company and the Guarantor has the
corporate power and authority to execute and deliver, and to consummate the
transactions contemplated by, this Agreement; the Company has the corporate
power and authority to issue and deliver the Notes as contemplated by this
Agreement; and the Guarantor has the corporate power and
19
authority to issue and deliver the Guarantee as contemplated by this Agreement.
(iv) The execution and delivery of this Agreement
have been duly authorized by all requisite corporate action of the Company
and the Guarantor; and this Agreement has been duly executed and delivered by
the Company and the Guarantor.
(v) The execution and delivery of the Indenture
have been duly authorized by all requisite corporate action of the Company
and the Guarantor; and the Indenture has been duly executed and delivered by
the Company and the Guarantor, and assuming due authorization, execution and
delivery by the Trustee, is a valid and binding agreement of the Company and
the Guarantor, enforceable against the Company and the Guarantor in
accordance with its terms, except that enforcement thereof may be subject to
(A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law)
and the exercise of discretionary authority of any court before which a
proceeding may be brought.
(vi) The execution and delivery of the Securities
have been duly authorized by all requisite corporate action of the Company
and the Guarantor; the Notes have been duly executed and delivered by the
Company and the Guarantees have been duly executed and delivered by the
Guarantor and, assuming due authentication by the Trustee, the Notes and the
Guarantees are valid and binding obligations of the Company and the Guarantor
respectively, entitled to the benefits of the Indenture, enforceable against
the Company and the Guarantor in accordance with their terms, except that
enforcement thereof may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
(B) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a proceeding may be brought.
(vii) The execution and delivery of the Exchange
Securities have been duly authorized by all requisite corporate action of the
Company and the Guarantor; and, when duly executed and delivered by the
Company and the Guarantor and duly authenticated by the Trustee, will be
valid and binding obligations of the Company and the Guarantor entitled to
the benefits of the Indenture, enforceable against the Company and the
Guarantor in accordance with their terms, except that enforcement thereof may
be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and the exercise of discretionary authority
of any court before which a proceeding may be brought.
(viii) The execution and delivery of the
Registration Rights
20
Agreement have been duly authorized by all requisite corporate action of the
Company and the Guarantor; the Registration Rights Agreement has been duly
executed and delivered by the Company and the Guarantor and, assuming due
authorization, execution and delivery by the Initial Purchaser, the
Registration Rights Agreement is a valid and binding agreement of the Company
and the Guarantor enforceable against the Company and the Guarantor in
accordance with its terms, except that (i) enforcement thereof may be subject
to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity
or at law) and the exercise of discretionary authority of any court before
which a proceeding may be brought and (ii) the validity and enforceability of
any indemnification or contribution provisions thereof may be limited under
applicable securities laws or public policies.
(ix) The execution and delivery of the Credit
Agreements have been duly authorized by all requisite corporate action of the
Company and the Guarantor (to the extent each is a party thereto); and the
Credit Agreements have been duly executed and delivered by the Company and
the Guarantor (to the extent each is a party thereto) and, assuming the due
authorization, execution and delivery by the other parties thereto, are the
valid and binding agreements of the Company and the Guarantor (to the extent
each is a party thereto), enforceable against each of the Company and the
Guarantor (to the extent each is a party thereto) in accordance with their
terms, except that enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and the
exercise of discretionary authority of any court before which a proceeding
may be brought.
(x) All of the capital stock of the Company's
subsidiaries is owned of record by the Company except for directors'
qualifying shares in the case of Chattem (U.K.) Ltd. and HBA Insurance Ltd.
All shares of capital stock of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and except as
disclosed in the Final Memorandum, to the knowledge of such counsel, all such
shares are owned by the Company free and clear of any security interests,
liens, pledges or encumbrances.
(xi) To the knowledge of such counsel, neither the
Company nor any of its subsidiaries is in violation of its corporate charter
or bylaws, or in default under any material agreement (including loan and
credit agreements), indenture or instrument known to such counsel, which
default could, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect; to the best knowledge of such counsel, the Company
and each of its subsidiaries is not in violation of any material law,
ordinance, governmental rule or regulation or court decree to which it may be
subject which violation, singly or in the aggregate, would not
21
reasonably be expected to have a Material Adverse Effect.
(xii) The execution and delivery by the Company and
the Guarantor of this Agreement, the Indenture, the Registration Rights
Agreement, the Supplemental Indenture, the Acquisition Agreement and the
Credit Agreements, the consummation by the Company and the Guarantor of the
Acquisition and the other transactions contemplated hereby and thereby and by
the Final Memorandum will not (A) to the knowledge of such counsel, result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any material agreement or instrument of the Company or any of
its subsidiaries or (B) result in any violation of the provisions of the
charter or bylaws of the Company or any of its subsidiaries, or, to the
knowledge of such counsel, any applicable law, rule or regulation (other than
Securities Laws (as defined below) as to which an opinion is given in
paragraph (ii) above) with respect to the Company or any of its subsidiaries
or, to the knowledge of such counsel, any rule or regulation (other than
Securities Laws (as defined below) as to which an opinion is given in
paragraph (ii) above) or order of any court or governmental agency having
jurisdiction over the Company or any of its subsidiaries, except for such
violations that would not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and, to the knowledge of such counsel,
except for such consents, approvals or authorizations of, or filings,
registrations or qualifications with, governmental authorities as may be
required under the Securities Act and the rules and regulations thereunder,
the Trust Indenture Act and the rules and regulations thereunder or
applicable states securities or Blue Sky laws, rules or regulations (all of
such laws, rules and regulations are collectively referred to herein as
"Securities Laws") in connection with the purchase and distribution of the
Notes by the Initial Purchaser and as set forth in, and in order to
consummate the transactions contemplated by, the Registration Rights
Agreement (it being understood that no opinion is expressed as to any
subsequent resale of the Securities or any resale of Securities by any person
other than the Initial Purchaser), no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required in connection with the execution and delivery by
the Company and the Guarantor of this Agreement, the Indenture, the
Registration Rights Agreement, the Supplemental Indenture, the Acquisition
Agreement or the Credit Agreements, the consummation by the Company and the
Guarantor of the Acquisition and the other transactions contemplated hereby
and thereby and the issuance and sale of the Securities and Exchange
Securities by the Company and the Guarantor.
(xiii) The descriptions in the Final Memorandum of
the Indenture, the Securities, the Registration Rights Agreement and the
Credit Agreements are accurate summaries of such documents in all material
respects.
(xiv) To the knowledge of such counsel, the Company
and its subsidiaries, both before and immediately after giving effect to the
Acquisition, own or otherwise possess the right to use all patents,
trademarks, service marks, trade names and copyrights, all applications and
registrations for each of the foregoing, used in the conduct of their
respective
22
businesses as currently conducted; and, to the knowledge of such counsel neither
the Company nor any of its subsidiaries has received any notice, of any
infringement of or conflict with the rights of any third party with respect to
any of the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect on the Company.
(xv) To the knowledge of such counsel, the
statements made in the Final Memorandum under the headings
"Business--Government Regulation," "Business--Environmental Matters" and
"Business--Legal Proceedings," to the extent they constitute matters of law
or legal conclusions, have been reviewed by such counsel and fairly present
in all material respects the information disclosed therein.
(xvi) To such counsel's knowledge, no legal or
governmental proceedings are pending to which the Company or any of its
subsidiaries is a party that would be required under the Securities Act to be
described in a registration statement on Form S-1 or a prospectus contained
therein delivered at the time of the confirmation of the sale of an offering
of securities registered under the Securities Act that are not described in
the Final Memorandum or, to such counsel's knowledge, that seek to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance or
sale of the Securities to the Initial Purchaser or the consummation of the
transactions described in the Final Memorandum under the caption "Use of
Proceeds."
(xvii) Neither the Company nor any of its
subsidiaries is (i) subject to registration and regulation as an "investment
company" within the meaning of the Investment Company Act or (ii) a "holding
company" or a "subsidiary company" or an "affiliate" of a holding company
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(xviii) When the Securities are issued and delivered
pursuant to this Agreement, such Securities will not be of the same class
(within the meaning of Rule 144A(d)(3) under the Securities Act) as
securities of the Company or any of its subsidiaries that are listed on a
national securities exchange registered under Section 6 of the Exchange Act
or quoted on an automated inter-dealer quotation system.
(xix) Assuming the Initial Purchaser purchases the
Securities in accordance with Rule 144A under the Securities Act, neither the
issuance or sale of the Securities nor the application by the Company of the
net proceeds thereof as set forth in the Final Memorandum will violate
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
In addition, such counsel shall also state that such
counsel has participated
23
in conferences with officers and representatives of the Issuers,
representatives of the independent public accountants for the Issuers and
the Initial Purchaser and its counsel at which the contents of the Final
Memorandum and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for and has not
verified the accuracy, completeness or fairness of the statements contained
in the Final Memorandum, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to
materiality to the extent they deemed appropriate upon facts provided by
officers and other representatives of the Issuers), no facts have come to
the attention of such counsel that lead such counsel to believe that the
Final Memorandum, as of its date or the Closing Date, contained an untrue
statement of a material fact or omitted to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which there were made, not misleading (it being understood that such counsel
need express no belief or opinion with respect to the financial statements
and notes thereto and other financial and statistical data included
therein).
(h) You shall have received on the Closing Date an opinion
of Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, dated the Closing
Date and addressed to you, in form and substance reasonably satisfactory to
you.
(i) The Issuers and the Trustee shall have entered into the
Indenture and the Initial Purchaser shall have received counterparts,
conformed as executed, thereof.
(j) The Issuers and the Initial Purchaser shall have
entered into the Registration Rights Agreement and the Initial Purchaser
shall have received counterparts, conformed as executed, thereof.
(k) The Issuers and the domestic subsidiaries of the
Company shall have entered into the Credit Agreements (the form and substance
of which shall be reasonably acceptable to the Initial Purchaser) and the
Initial Purchaser shall have received counterparts, conformed as executed,
thereof and of all other documents and agreements entered into in connection
therewith. There shall exist at the Execution Time and at the Closing Date no
conditions that would constitute a default (or an event that with notice or
the lapse of time, or both, would constitute a default) under the Credit
Agreements. At the time of Closing on the Closing Date, the Credit Agreements
shall be in full force and effect and shall not have been modified.
(l) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxxxx LLP and Price Waterhouse LLP shall have furnished to the Initial
Purchaser customary "comfort" letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser and counsel for the Initial Purchaser,
with respect to the financial statements and certain financial information of
the
24
Company, its subsidiaries and BAN, and confirming that they are independent
accountants within the meaning of the Securities Act and the Exchange Act and
the applicable rules and regulations thereunder and Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public Accountants
(the "AICPA"), and otherwise reasonably satisfactory in form and substance to
the Initial Purchaser and its counsel.
(m) (i) None of the Company, its subsidiaries or BAN shall
have sustained since the date of the latest financial statements included in
the Final Memorandum losses or interferences with their businesses, taken as
a whole, from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Final Memorandum and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company, any of its
subsidiaries or BAN or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company, its
subsidiaries and BAN, taken as a whole, otherwise than as set forth or
contemplated in the Final Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the reasonable judgment of the
Initial Purchaser, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities
being delivered on the Closing Date on the terms and in the manner
contemplated herein and in the Final Memorandum.
(n) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or The NASDAQ Stock
Market's National Market or in the over-the-counter market shall have been
suspended or materially limited, or minimum prices shall have been
established on such exchange by the SEC, or by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii)
the United States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the reasonable judgment of the Initial Purchaser, impracticable
or inadvisable to proceed with the offering or delivery of the Securities
being delivered on the Closing Date on the terms and in the manner
contemplated herein and in the Final Memorandum.
(o) As of the Closing Date, no "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Securities Act (i) will have imposed (or will have
informed the Company or the Guarantor that it is considering imposing) any
condition (financial or otherwise) on the Company's or the Guarantor's
retaining any rating assigned to the Company or the Guarantor, any securities
of the Company or the
25
Guarantor or (ii) will have indicated to the Company or the 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 negative change in the outlook for any
rating of the Company, the Guarantor or any securities of the Company or the
Guarantor.
(p) Concurrently with the Closing hereunder, the Issuers
shall have consummated the Acquisition in accordance with the Acquisition
Agreement, as in effect on the date hereof (without amendment or waiver).
(q) Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 7 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(r) Prior to the Closing Date, the Issuers shall have
furnished to the Initial Purchaser such further information, certificates and
documents as the Initial Purchaser may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchaser.
8. Indemnification and Contribution. (a) The Issuers jointly and
severally agree to indemnify and hold harmless the Initial Purchaser, the
directors, officers, employees and agents (including, without limitation,
attorneys) of the Initial Purchaser and each person who controls the Initial
Purchaser within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law 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 a material fact contained in the
Preliminary Memorandum, the Final Memorandum or any information provided by
the Issuers to any holder or prospective purchaser of Notes pursuant to
Section 5(e), or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action: provided,
26
however, that the Issuers will not be liable in any such case to the Initial
Purchaser to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission relating to the Initial Purchaser made
in the Preliminary Memorandum or the Final Memorandum, or in any amendment
thereof or supplement thereto, in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of the Initial Purchaser
specifically for inclusion therein.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Issuers, their directors, officers, employees and agents
(including, without limitation, attorneys), and each person who controls the
Issuers within the meaning of either the Securities Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Issuers to the Initial
Purchaser, but only with reference to written information relating to the
Initial Purchaser furnished to the Issuers by or on behalf of the Initial
Purchaser specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser
may otherwise have. The Issuers and the Initial Purchaser acknowledge that
the statements set forth in the last paragraph of the cover page and under
the heading "Plan of Distribution" in the Preliminary Memorandum and the
Final Memorandum constitute the only information furnished in writing by or
on behalf of the Initial Purchaser for inclusion in the Preliminary
Memorandum or the Final Memorandum (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under
this Section 8 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 this Section 8, notify the indemnifying party in
writing of the commencement thereof, but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however that such counsel
shall be reasonably satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel) and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would, in the opinion of legal counsel to the indemnified
27
party, present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been informed in writing by legal counsel that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Issuers and the Initial
Purchaser agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Issuers and the Initial Purchaser may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Issuers
and by the Initial Purchaser from the offering of the Securities; provided,
however, that in no case shall the Initial Purchaser be responsible for any
amount in excess of the purchase discount or commission applicable to the
Securities purchased by the Initial Purchaser hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Issuers and the Initial Purchaser shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Issuers and of the Initial Purchaser in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Issuers
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) and benefits received by the Initial Purchaser
shall be deemed to be equal to the total purchase discounts and commissions
received by the Initial Purchaser from the Issuers in connection with the
purchase of the Securities hereunder. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Issuers or the Initial Purchaser. The Issuers and
the Initial Purchaser agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
28
purposes of this Section 8, each person who controls the Initial Purchaser
within the meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of the Initial Purchaser shall have the
same rights to contribution as the Initial Purchaser, and each person who
controls the Issuers within the meaning of either the Securities Act or the
Exchange Act and each partner, officer, director, employee and agent of the
Issuers shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Termination. The obligations of the Initial Purchaser hereunder
may be terminated by the Initial Purchaser by notice given to and received by
the Company prior to delivery of and payment for the Securities if, prior to
that time, any of the events described in Sections 7(n) or 7(o) shall have
occurred or if the Initial Purchaser shall decline to purchase the Securities
for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchaser's Expenses. If (a) the Issuers
shall fail to tender the Securities for delivery to the Initial Purchaser
otherwise than for any reason permitted under this Agreement or (b) the
Initial Purchaser shall decline to purchase the Securities for any reason
permitted under this Agreement, the Issuers shall reimburse the Initial
Purchaser for the reasonable fees and expenses of its counsel and for such
other reasonable out-of-pocket expenses as shall have been incurred by them
in connection with this Agreement and the proposed purchase of the
Securities, and upon demand the Issuers shall pay the full amount thereof to
the Initial Purchaser.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered
or sent by mail, telex or facsimile transmission to NationsBanc Xxxxxxxxxx
Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
telecopier no.: (000) 000-0000, Attention: Xxxxxxx Xxxxxxxxx, with a copy to
Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxxxxxx III;
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to Chattem, Inc., 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, telecopier no.: (000) 000-0000, Attention: A.
Xxxxxxxxx Xxxxxx, President and Chief Operating Officer, with a copy to Xxxxxx &
Xxxxxx, LLP, 1000 Volunteer Building, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Telecopier No.:(000) 000-0000, Attention: Xxxx X. Xxxxxxx, Esq.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Issuers shall be entitled to
act and rely upon any request,
29
consent, notice or agreement given or made on behalf of the Initial
Purchaser.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the
Issuers and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the
Issuers contained in this Agreement shall also be deemed to be for the
benefit of directors, officers, employees and agents (including, without
limitation, attorneys) of the Initial Purchaser and the person or persons, if
any, who control the Initial Purchaser within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Initial Purchaser
contained in Section 8(b) of this Agreement shall be deemed to be for the
benefit of directors of the Issuers, officers, employees and agents
(including, without limitation, attorneys) of the Issuers and any person
controlling any of the Issuers within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 12,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Issuers and the Initial Purchaser contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
14. Definition of "Business Day." For purposes of this Agreement,
"business day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York, New
York are authorized or obligated by law, executive order or regulation to
close.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
30
[Signature page follows]
31
If the foregoing correctly sets forth the agreement
between the Issuers and the Initial Purchaser, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
CHATTEM, INC.
By:
-----------------------------------------
Name: A. Xxxxxxxxx Xxxxxx
Title: President and Chief Operating
Officer
THE GUARANTOR:
SIGNAL INVESTMENT & MANAGEMENT CO.
By:
-----------------------------------------
Name: A. Xxxxxxxxx Xxxxxx
Title: President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:
------------------------------
Name:
Title:
EXHIBIT A
Registration Rights Agreement
SCHEDULE A
SUBSIDIARIES
Name Jurisdiction of Incorporation
---- -----------------------------
Signal Investment & Management Co. Delaware
Chattem (Canada) Inc. Canada
Chattem (U.K.) Limited United Kingdom
HBA Insurance, Ltd. Bermuda
Internet Financial Network
Smart Doc
SPRINT CORP
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Document SC14D1
Filing Date: 02/18/1998
Exhibit List
------------
EX-1.(A)(1)
EX-1.(A)(2)
EX-1.(A)(3)
EX-1.(A)(4)
EX-1.(A)(5)
EX-1.(A)(6)
EX-1.(A)(7)
EX-1.(A)(8)
EX-1.(C)(1)
EX-1.(C)(2)
EX-1.(C)(3)
EX-1.(C)(4)
EX-1.(C)(5)
EX-1.(C)(6)
EX-1.(C)(7)
EX-1.(C)(8)
