MYLAN LABORATORIES INC. (a Pennsylvania corporation) 1.25% Senior Convertible Notes due 2012 PURCHASE AGREEMENT
Exhibit
1.1
(a Pennsylvania corporation)
1.25% Senior Convertible Notes due 2012
Dated: March 1, 2007
(a Pennsylvania corporation)
$550,000,000
1.25% Senior Convertible Notes due 2012
March 1, 2007
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Mylan Laboratories Inc., a Pennsylvania corporation (the “Company”), confirms its agreement
with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”),
▇.▇. ▇▇▇▇▇▇ Securities Inc. (“▇.▇. ▇▇▇▇▇▇”) and each of the other Underwriters named in Schedule A
hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted
as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇ are acting as
representatives (in such capacity, the “Representatives”), with respect to the issue and sale by
the Company and the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $550,000,000 aggregate principal
amount of the Company’s senior convertible notes due 2012 (the “Convertible Notes”), and with
respect to the grant by the Company to the Underwriters of the option described in Section 2(b)
hereof to purchase all or any part of an additional $50,000,000 principal amount of Convertible
Notes to cover overallotments, if any. The aforesaid initial $550,000,000 principal amount of
Convertible Notes (the “Initial Notes”) to be purchased by the Underwriters and all or any part of
the $50,000,000 principal amount of Convertible Notes subject to the option described in Section
2(b) hereof (the “Option Notes” and together with the Initial Notes, the “Notes”) to be purchased
by the Underwriters are to be issued pursuant to an indenture dated as of March 7, 2007 (the
“Indenture”) between the Company, the Guarantors (as defined below) and The Bank of New York, as
trustee (the “Trustee”). The Notes will be unconditionally guaranteed on a senior basis (the
“Guarantee” and together with the Notes, the “Securities”) by each of the subsidiaries of the
Company listed on the signature page hereto (the “Guarantors”).
The Securities are convertible into shares of common stock, par value $0.50 per share, of the
Company (the “Common Stock”) in accordance with the terms, and subject to the conditions, of the
Securities and the Indenture, at the initial conversion rate specified in Schedule B hereto.
Concurrently with the offering and sale of the Securities by the Company pursuant to the terms
of this Agreement, the Company is offering to sell up to 26,162,500 shares of its common stock
(including shares subject to the underwriters’ over-allotment option) (the “Shares”), pursuant to
the terms of an
Underwriting Agreement, dated as of even date herewith, among the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ and the other underwriters named therein (the “Concurrent Equity Offering”).
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered and the form of the Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the “1939 Act”).
The Company has filed with the Securities and Exchange Commission (the “Commission”) an
automatic shelf registration statement on Form S-3 (No. 333-140778), including the related
preliminary prospectus or prospectuses, which registration statement became effective upon filing
under Rule 462(e) of the rules and regulations of the Commission (the “1933 Act Regulations”) under
the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement covers the
registration of the Securities under the 1933 Act. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule
430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the
1933 Act Regulations. Any information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be part of and
included in such registration statement pursuant to Rule 430B is referred to as “Rule 430B
Information.” Each prospectus used in connection with the offering of the Securities that omitted
Rule 430B Information is herein called a “preliminary prospectus.” Such registration statement, at
any given time, including the amendments thereto at such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or
included therein by 1933 Act Regulations, is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the execution
of this Agreement and any preliminary prospectuses that form a part thereof, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“▇▇▇▇▇”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company and Guarantors jointly and severally
represent and warrant to each Underwriter as of the date hereof, the Applicable Time referred to in
Section 1(a)(iii) hereof, as of the Closing Time referred to in Section 2(c), and agrees with
each Underwriter, as follows:
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(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof, the Company was and
is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”), including not having been and not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, and the Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement” pursuant to Rule 415(a)(1)(x). The Company has not received from
the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting
to the use of the automatic shelf registration statement form.
(ii) At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(iii) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on February 20, 2007, and any post-effective amendment
thereto also became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided by
Rule 163 and otherwise complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the exemption from Section
5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration
Statement complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the “1939 Act Regulations”), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing Time, included
or will include an untrue statement of a material fact or omitted or will omit to state a
material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or any amendment thereto) complied when so filed in all
material respects with the 1933 Act Regulations and each such preliminary prospectus was and
the Prospectus delivered to the Underwriters for use in connection with this offering will
be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
As of the Applicable Time, the Issuer Free Writing Prospectuses (as defined below)
issued at or prior to the Applicable Time, as the case may be, the Statutory Prospectus (as
defined below) and the information included on Schedule B hereto, all considered together
(collectively, the “General Disclosure Package”), when considered together with the General
Disclosure Package, did not include any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
As of the time of the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet, will not include any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 am (Eastern time) on March 2, 2007 or such other time as
agreed by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 3(e), did
not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated
by reference therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
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The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein.
(iv) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus at the time they
were or hereafter are filed with the Commission, complied, and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), as
applicable, and, when read together with the other information in the Prospectus, (a) at the
time the Original Registration Statement became effective, (b) at the earlier of the time
the Prospectus was first used and the date and time of the first contract of sale of
Securities in this offering and (c) at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(v) Independent Accountants. Deloitte & Touche LLP, the accountants who
certified the financial statements and supporting schedules included in the Registration
Statement have indicated in writing that they are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and the summary
financial information, other than the pro forma financial data, included in the Registration
Statement, the General Disclosure Package and the Prospectus have been derived from the
historical financial statements included in the Prospectus. The pro forma financial data of
the Company and its consolidated subsidiaries included in the Prospectus, have been prepared
in accordance with the Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on such basis; the assumptions used in the
preparation thereof and the adjustments used therein are appropriate to give effect to the
transactions and on the dates indicated in the Prospectus.
(vii) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for regular quarterly
dividends on the Common Stock and as described in the Prospectus, there has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
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(viii) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(ix) Good Standing of Designated Subsidiaries. Each subsidiary listed on
Schedule C hereto (each a “Designated Subsidiary” and, collectively, the “Designated
Subsidiaries”) has been duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its formation, has
corporate or other power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus and is duly
qualified as a foreign corporation or limited liability company to transact business and is
in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, Prospectus or General
Disclosure Package, all of the issued and outstanding capital stock of each Designated
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of the Designated Subsidiaries was issued in violation of any
preemptive or similar rights of any securityholder of such Designated Subsidiary. The
subsidiaries of the Company other than Designated Subsidiaries, considered in the aggregate
as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02
of Regulation S-X.
(x) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements, employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(xi) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors.
(xii) Authorization of the Indenture. The Indenture has been duly authorized
by the Company and the Guarantors and, when executed and delivered by the Company and the
Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee),
will constitute a valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each of the Guarantors in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
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(xiii) Authorization of the Notes. The Notes have been duly authorized and, at
Closing Time, will have been duly executed by the Company and, when authenticated, issued
and delivered in the manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers) reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xiv) Description of the Securities and Indenture. The Securities and the
Indenture will conform in all material respects to the respective statements relating
thereto contained in the Prospectus and will be in substantially the respective forms filed
or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(xv) Authorization and Description of Common Stock. The Common Stock conforms
to all statements relating thereto contained or incorporated by reference in the Prospectus
and such description of the Common Stock conforms to the rights set forth in the Company’s
Certificate of Incorporation and Bylaws. Upon issuance and delivery of the Securities in
accordance with this Agreement and the Indenture, the Securities will be convertible at the
option of the holder thereof for shares of Common Stock in accordance with the terms of the
Securities and the Indenture; the shares of Common Stock issuable upon conversion of the
Securities have been duly authorized and reserved for issuance upon such conversion by all
necessary corporate action and such shares, when issued upon such conversion in accordance
with the terms of the Securities and the Indenture, will be validly issued and will be fully
paid and non-assessable; no holder of such shares will be subject to personal liability by
reason of being such a holder; and the issuance of such shares upon such conversion will not
be subject to the preemptive or other similar rights of any securityholder of the Company.
(xvi) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is (a) in violation of its charter or by-laws or (b) in default in the
performance or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, “Agreements and Instruments”)
except for defaults that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the Securities and any other
agreement or instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or thereby or in the
Prospectus and the consummation of the transactions contemplated herein and in the
Prospectus (including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption “Use of
Proceeds”) and the Concurrent Equity Offering and compliance by the Company and the
Guarantors with their obligations hereunder have been duly authorized by all necessary
corporate or other action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, the Agreements
and Instruments except for such conflicts, breaches or defaults or Repayment Events or
liens, charges or encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect, nor
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will such action result in any violation of (x) the provisions
of the charter or by-laws of the Company or any of its subsidiaries or (y) any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or operations, except
in the case of clause (y) above, any such violations that, singly or in the aggregate, would
not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(xvii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees
of any of its or any subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material Adverse Effect.
(xviii) Compliance with Laws; Absence of Proceedings. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus and except
such matters as would not, singly or in the aggregate, result in a Material Adverse Effect,
neither the Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries which might result in a Material
Adverse Effect, or which might materially and adversely affect the consummation of the
transactions contemplated by this Agreement, the Concurrent Equity Offering or the
performance by the Company of its obligations hereunder or thereunder, as applicable. The
aggregate of all pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement or Prospectus, including
ordinary routine litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xix) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the General Disclosure Package, the
Prospectus or the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xx) Taxes. All United States federal income tax returns of the Company and
its subsidiaries required by law to be filed have been filed or extensions thereof have been
duly requested and all taxes shown by such returns or otherwise assessed, which are due and
payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided or where the failure to
pay would not result in a Material Adverse Effect. The Company and its subsidiaries have
filed all other tax returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other
law except insofar as the failure to file such returns would not result in a Material
Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and its subsidiaries, except for such taxes, if any, as
are being contested in good faith and as to which adequate reserves have been provided or
where the failure to pay would not result
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in a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company in respect of any income and corporation
tax liability for any years not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not result in a Material Adverse Effect.
(xxi) Internal Controls. The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization,
(B) transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain accountability for
assets, (C) access to assets is permitted only in accordance with management’s general or
specific authorization and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) Insurance. The Company and its subsidiaries carry or are entitled to
the benefits of insurance, with financially sound and reputable insurers, in such amounts
and covering such risks as is generally maintained by companies of established repute
engaged in the same or similar business, and all such insurance is in full force and effect.
(xxiii) Solvency. The Company is, and immediately after the Closing Time will
be, Solvent. As used herein, the term “Solvent” means, with respect to the Company on a
particular date, that on such date (A) the fair market value of the assets of the Company is
greater than the total amount of liabilities (including contingent liabilities) of the
Company, (B) the present fair salable value of the assets of the Company is greater than the
amount that will be required to pay the probable liabilities of the Company on its debts as
they become absolute and matured, (C) the Company is able to realize upon its assets and pay
its debts and other liabilities, including contingent obligations, as they mature, and (D)
the Company does not have unreasonably small capital.
(xxiv) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xxv) Possession of Intellectual Property. Except as described in the
Registration Statement, General Disclosure Package and Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now operated by
them, and neither the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xxvi) Absence of Further Requirements. Except as disclosed in the
Registration Statement, General Disclosure Package and Prospectus and other than
registration or qualification
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under state securities or blue sky laws in connection with the
offer and sale of the Securities, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the Securities
hereunder, the issuance of shares of Common Stock upon conversion of the Securities or the
consummation of the transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company and the Guarantors, except such as
have been already obtained.
(xxvii) Possession of Licenses and Permits. Except as described in the
Registration Statement, General Disclosure Package and Prospectus, the Company and its
subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now operated by
them, except where the failure so to possess would not, singly or in the aggregate, result
in a Material Adverse Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, singly or in the aggregate, result in a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xxviii) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Registration Statement and Prospectus or (b) do not, singly
or in the aggregate, materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business of the Company
and its subsidiaries, considered as one enterprise, and under which the Company or any of
its subsidiaries holds properties described in the Registration Statement and Prospectus,
are in full force and effect, except where the failure of such lease or sublease to be in
full force and effect would not singly or in the aggregate result in a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or
any of its subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any subsidiary thereof to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xxix) No Cessation By Supplier. Except as would not singly or in the
aggregate have a Material Adverse Effect, no supplier of merchandise to the Company or any
of its subsidiaries has ceased shipments of merchandise to the Company.
(xxx) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among any of the Company or any affiliate of the Company, on the one hand,
and any director, officer, stockholder, customer or supplier of any of them, on the other
hand, which would be required by the 1933 Act or by the 1933 Act Regulations to be described
in the Registration Statement or Prospectus which is not described in the Registration
Statement and Prospectus.
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(xxxi) Environmental Laws. Except as described in the Registration Statement,
General Disclosure Package and Prospectus and except such matters as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or, to the
Company’s knowledge, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that would reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or Environmental Laws.
(xxxii) Investment Company Act. The Company is not required, and upon the
issuance and sale of the offered Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be required, to register
as an “investment company” under the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxxiii) Pending Proceedings and Examinations. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or
any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Notes. On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate principal amount of
Initial Notes set forth in
Schedule A opposite the name of such Underwriter, plus any additional principal amount of
Initial Notes which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Notes. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase $50,000,000 principal amount of
Option Notes at the same price set forth in Schedule B for the Initial Notes, plus accrued
interest, if any, from the Closing
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Date to the Additional Closing Time. The option hereby granted
will expire 13 days after the date hereof and may be exercised in whole or in part from time to
time (but not more than two (2) times without the written consent of the Company) only for the
purpose of covering overallotments which may be made in connection with the offering and
distribution of the Initial Notes upon written notice by the Representatives to the Company setting
forth the number of Option Notes as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Notes. Any such time and date
of delivery (an “Additional Closing Time”) shall be determined by the Representatives, but shall
not be later than seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as to all or any
portion of the Option Notes, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the aggregate principal amount of Option Notes then being purchased
which the principal amount of Initial Notes set forth in Schedule A opposite the name of such
Underwriter bears to the aggregate principal amount of Initial Notes.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and
the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the Applicable Time occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company (such time and date
of payment and delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for their account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Notes and the
Option Notes, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the applicable Additional Closing Time, as applicable, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities shall be in such
denominations and registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time. The Securities will be made available for
examination and packaging by the Representatives in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B
and will notify the Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement or new registration statement
relating to the Securities shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of
the receipt of any comments from the
Commission, (iii) of
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any request by the Commission for any amendment to the Registration
Statement or the filing of a new registration statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or otherwise deemed to be a
part thereof or for additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or such new
registration statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act in connection with the offering of the Securities. The Company
will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment. The Company shall pay the required
Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)
(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if
applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents; Preparation of Final Term Sheet.
The Company will give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or new registration statement relating to the
Securities or any amendment, supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration Statement or amendment
thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object. The Company has given the Representatives notice
of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior
to the Applicable Time; the Company will give the Representatives notice of its intention to
make any such filing from the Applicable Time to the Closing Time (or if later, to the date
of expiration of the option granted to the Underwriters pursuant to Section 2(b)) and will
furnish the Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object. The Company will prepare a
final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in
form and substance satisfactory to the Representatives, and shall file such Final Term Sheet
as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business
two business days after the date hereof; provided that the Company shall furnish the
Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to
such proposed filing and will not use or file any such document to which the Representatives
or counsel to the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge, signed copies of the
Original Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or deemed to be
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incorporated by reference therein or otherwise deemed to be a part thereof) and signed
copies of all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Original Registration Statement and
of each amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Original Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act
and the 1939 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements 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 shall be
necessary, in the opinion of such counsel, at any such time to amend the Registration
Statement or to file a new registration statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section 3(b), such
amendment, supplement or new registration statement as may be necessary to correct such
statement or omission or to comply with such requirements, the Company will use its best
efforts to have such amendment or new registration statement declared effective as soon as
practicable (if it is not an automatic shelf registration statement with respect to the
Securities) and the Company will furnish to the Underwriters such number of copies of such
amendment, supplement or new registration statement as the Underwriters may reasonably
request. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement (or any other registration statement relating to the Securities) or the Statutory
Prospectus or any preliminary prospectus or included or would include an untrue statement of
a material fact or omitted or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ and will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Representatives may designate
and to
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maintain such qualifications in effect for a period of not less than one year from
the date hereof; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or so subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply the Underwriters with such information as is necessary
for the determination of the legality of the Securities for investment under the laws of
such jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use its best efforts to effect the listing of the
Securities and the Common Shares issuable upon conversion of the Securities on the New York
Stock Exchange subject to official notice of issuance.
(j) Restriction on Sale of Securities. During a period of 90 days from the date of
this Agreement, the Company will not, without the prior written consent of the ▇▇▇▇▇▇▇
▇▇▇▇▇, directly or indirectly, issue, sell, offer or contract to sell, grant any option for
the sale of, or otherwise transfer or dispose of, any debt securities of the Company.
(k) Reporting Requirements. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(l) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless
it obtains the prior consent of the Representatives, and each Underwriter represents and
agrees that, unless it obtains the prior consent of the Company and the Representatives, it
has not made and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission; provided, however, that prior to the preparation of the Final Term Sheet in
accordance with Section 3(b), the Underwriters are authorized to use the information with
respect to the final terms of the Securities in communications conveying information
relating to the offering to investors. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule
433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
(m) Restriction on Sale of Common Stock. During a period of 90 days from the date of
this Agreement, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or
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exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Securities to be sold hereunder, or to the following:
(i) any transaction involving, including any repurchase, redemption or conversion of,
the Securities;
(ii) the issuance by the Company to its employees or directors of options, warrants or
other rights to purchase Common Stock or other equity awards in shares of Common Stock under
any of the Company’s equity incentive or compensation plans in effect as of the Closing
Date;
(iii) the purchase by the Company of call options, and the sale by the Company of
warrants, each in connection with convertible note hedge transactions entered into in
connection with the sale of the Securities, and any transactions in the Company’s securities
contemplated by such call options or warrants;
(iv) any registration statement filed with the SEC (A) on Form S-8 with respect to
securities to be issued pursuant to any employee benefit plan (as defined in Rule 405 under
the ▇▇▇▇ ▇▇▇) and (B) on Form S-4 with respect to any business combination or other
acquisition of another business; and
(v) the Concurrent Equity Offering.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur
during the 16-day period beginning on the last day of the Lock-Up Period,
the restrictions imposed by this clause (m) shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event, as applicable, unless ▇▇▇▇▇▇▇ ▇▇▇▇▇ waives, in writing,
such extension.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as originally filed and of
each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery of the Securities or
the issuance or delivery of the Common Stock issuable upon conversion thereof, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriters and
the Certificates for the Common Stock issuable upon conversion thereof, (iv) the fees and
disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification
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of
the Securities and the Common Stock under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities, (ix) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing
of the Securities, including without limitation, expenses associated with the production of road
show slides and graphics, reasonable fees and expenses of any consultants engaged in connection
with the road show presentations, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of aircraft and other transportation
chartered in connection with the road show, (x) any fees payable in connection with the rating of
the Securities, (xi) the fees and expenses of any transfer agent or registrar for the Common Stock,
(xii) the fees and expenses incurred in connection with the listing of the Common Stock issuable
upon conversion of the Securities on the New York Stock Exchange and (xiii) the costs and expenses
(including without limitation any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale of the Securities
made by the Underwriters caused by a breach of the representation contained in the sixth paragraph
of Section 1(a)(iii). It is understood, however, that except as provided in this Section 4 and
Sections 6, 8 and 9, the Underwriters will pay all of their own costs and expenses including the
fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp and Sidley Austin LLP, counsel to the
Underwriters.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Guarantors contained in Section 1 hereof or in certificates of any officer of the
Company and the Guarantors or any subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company and the Guarantors of their covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing
Fee. The Registration Statement has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and any request
on the part of
the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule
430B Information shall have been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective
amendment providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B). The Company shall have paid the required
Commission filing fees relating to the Securities within the time period required by Rule
456(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable,
shall have updated the “Calculation of Registration Fee” table in
-17-
accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of (i) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Esq., Corporate
Counsel of the Company, and (iii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Corporate Counsel of the Company,
in each case in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A, B and C hereto, respectively. Either such counsel may state
that, insofar as such opinion involves factual matters, such counsel has relied, to the
extent such counsel deemed proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall
have received the favorable opinion, dated as of Closing Time, of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ llp and (ii) Sidley Austin LLP, each counsel for the Underwriters, together
with signed or reproduced copies of such letters for each of the other Underwriters. Any
such counsel may also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of the Company
and its subsidiaries and certificates of public officials.
(d) Officers’ Certificate. At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Prospectus or
the General Disclosure Package, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountants’ Comfort Letters. At the time of the execution of this Agreement, the
Representatives shall have received letters dated such date from (i) Deloitte & Touche LLP
and (ii) Deloitte, ▇▇▇▇▇▇▇ & Sells, each in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letters for each of the
other Underwriters containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letters. At Closing Time, the Representatives shall have
received letters, dated as of Closing Time, from (i) Deloitte & Touche LLP and (ii)
Deloitte, ▇▇▇▇▇▇▇ & Sells, each to the effect that they reaffirm the statements made in the
letters furnished pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing Time.
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(g) Maintenance of Rating. Since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Securities or any of the Company’s
other debt by any “nationally recognized statistical rating agency,” as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or review, in the
possible negative implications, its rating of the Securities or any of the Company’s other
debt.
(h) Approval of Listing. At Closing Time, the Securities and the Common Stock issuable
upon conversion of the Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(i) Additional Documents. At the Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(j) Lock-up Agreements. At the date of this Agreement, the Representatives shall have
received an agreement substantially in the form of Exhibit D hereto signed by the persons
listed on Schedule D hereto.
(k) Conditions to Purchase of Option Notes. In the event that the Representatives
exercise their option provided in Section 2(b) hereof to purchase all or any portion of the
Option Notes, the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Additional Closing Time and, at the relevant
Additional Closing Time, the Representatives shall have received:
(i) Officers’ Certificate. A certificate, dated such Additional Closing Time,
of the President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company and each Guarantor confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains
true and correct as of such Additional Closing Time.
(ii) Opinion of Counsel for Company. The favorable opinions, dated as of the
Additional Closing Time, of (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel for the Company, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Corporate Counsel of the
Company, and (iii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Corporate Counsel of the Company in each
case, in form and substance satisfactory to counsel for the Underwriters, dated such
Additional
Closing Time, relating to the Option Notes to be purchased on such Additional
Closing Time and otherwise to the same effect as the opinion required by Section
5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable opinion of (i)
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp and (ii) Sidley Austin llp, each
counsel for the Underwriters , each dated such Additional Closing Time, relating to
the Option Notes to be purchased on such Additional Closing Time and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
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(iv) Bring-down Comfort Letter. A letter from Deloitte & Touche LLP, in form
and substance satisfactory to the Representatives and dated such Additional Closing
Time, substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the “specified date” in
the letter furnished pursuant to this paragraph shall be a date not more than five
days prior to such Additional Closing Time.
(v) No Downgrading. Subsequent to the date of this Agreement, no downgrading
shall have occurred in the rating accorded the Securities or of any of the Company’s
other debt by any “nationally recognized statistical rating organization,” as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its ratings of any of
the Securities or any of the Company’s other debt.
(l) Termination of Agreement. If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of
any condition to the purchase of Option Notes, at an Additional Closing Time which is after
the Closing Time, the obligations of the several Underwriters to purchase the relevant
Option Notes, may be terminated by the Representatives by notice to the Company at any time
at or prior to Closing Time or such Additional Closing Time, as the case may be, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and each Guarantor each jointly and
severally agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating,
-20-
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Guarantors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, the Guarantors, its directors, each of
its officers who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430B Information or any preliminary prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying
-21-
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Guarantors on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Guarantors on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Guarantors and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus bear to the aggregate initial public offering
price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Guarantors on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
-22-
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Guarantor, each officer of the Company or any Guarantor who
signed the Registration Statement, and each person, if any, who controls the Company or any
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company and the Guarantors. The Underwriters’ respective
obligations to contribute pursuant to this Section 7 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company, any of its subsidiaries, or the Guarantors submitted pursuant hereto,
shall remain operative and in full force and effect regardless of (i) any investigation made by or
on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors or any person controlling the Company, or the Guarantors,
and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto) or the General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices
have been required, by any of said exchanges or by such system or by order of the Commission,
the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv)
a material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States, or (v) if a banking moratorium has been declared by either Federal,
New York or Pennsylvania authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or an Additional Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
-23-
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount
of the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or, in the case of an Additional Closing Time that is after the Closing
Time, which does not result in a termination of the obligation of the Underwriters to purchase and
the Company to sell the relevant Option Notes, as the case may be, or the Company shall have the
right to postpone Closing Time or the relevant Additional Closing Time, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax
structure” includes any fact that may be relevant to understanding the purported or claimed
federal income tax treatment of the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇, at World
Financial Center, North Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., at ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and notices to the Company shall be directed to Mylan
Laboratories, Inc, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Chief Financial Officer, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., at Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 13. No Advisory or Fiduciary Relationship. The Company and the Guarantors
acknowledge and agree that (a) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company and the
Guarantors, on the one hand, and the several Underwriters, on the other hand, (b) in connection
with the offering contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary of the Company, the
Guarantors or their stockholders, creditors, employees or any other party, (c) no Underwriter has
assumed or will assume an advisory or fiduciary responsibility in favor of the Company or any
Guarantors with respect to the offering contemplated
-24-
hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company or any
Guarantors on other matters) and no Underwriter has any obligation to the Company or any Guarantors
with respect to the offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and the Guarantors, and
(e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and the Company and the Guarantors have consulted their own
legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company and the Guarantors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters, the Company and the Guarantors and their respective
successors and the controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters,
the Company and the Guarantors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
-25-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Company and the Guarantors in
accordance with its terms.
| Very truly yours, | ||||||
| MYLAN LABORATORIES INC. | ||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Title: Chief Financial Officer | ||||||
| MILAN HOLDING INC. | ||||||
| MYLAN INC. | ||||||
| MYLAN TECHNOLOGIES INC. | ||||||
| MYLAN INTERNATIONAL HOLDINGS, INC. | ||||||
| MYLAN CARIBE, INC. | ||||||
| BERTEK INTERNATIONAL, INC. | ||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Title: Vice President | ||||||
| MLRE LLC | ||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Title: | ||||||
| MP AIR INC. | ||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Title: | ||||||
| MYLAN PHARMACEUTICALS INC. | ||||||
| MYLAN BERTEK PHARMACEUTICALS INC. | ||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Title: Executive Vice President | ||||||
S-1
| CONFIRMED AND ACCEPTED, | ||||
| as of the date first above written: | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. | ||||
| ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED | ||||
| ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. | ||||
By:
|
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED | |||
By |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
By:
|
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. | |||
By |
/s/ Authorized Signatory | |||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
S-2
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Name of Underwriter | Securities | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated |
$ | 247,500,000 | ||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
$ | 165,000,000 | ||
Greenwich Capital Markets, Inc. |
$ | 31,348,000 | ||
Citigroup Global Markets Inc. |
$ | 26,250,000 | ||
ABN AMRO Rothschild LLC |
$ | 15,978,000 | ||
Mitsubishi UFJ Securities International plc |
$ | 15,978,000 | ||
PNC Capital Markets LLC |
$ | 15,978,000 | ||
BNY Capital Markets, Inc. |
$ | 7,992,000 | ||
HSBC Securities (USA) Inc. |
$ | 7,992,000 | ||
NatCity Investments, Inc. |
$ | 7,992,000 | ||
SunTrust Capital Markets, Inc. |
$ | 7,992,000 | ||
Total |
$ | 550,000,000 | ||
Sch A-1
SCHEDULE C
[List of Designated Subsidiaries]
Mylan Pharmaceuticals Inc.
Milan Holding Inc.
Mylan Bertek Pharmaceuticals Inc.
Mylan Inc.
UDL Laboratories, Inc.
Mylan Technologies Inc.
American Triumvirate Insurance Company
Mylan International Holdings, Inc.
Mylan Caribe, Inc.
MLRE LLC
MP Air Inc.
Bertek International, Inc.
Penederm Limited
Euro Mylan B.V.
Bertek Pharmaceuticals International Limited
Milan Holding Inc.
Mylan Bertek Pharmaceuticals Inc.
Mylan Inc.
UDL Laboratories, Inc.
Mylan Technologies Inc.
American Triumvirate Insurance Company
Mylan International Holdings, Inc.
Mylan Caribe, Inc.
MLRE LLC
MP Air Inc.
Bertek International, Inc.
Penederm Limited
Euro Mylan B.V.
Bertek Pharmaceuticals International Limited
Sch C-1
SCHEDULE D
[List of Persons Subject to Lock-Up Agreements]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. Maroon
▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. Maroon
▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Sch D-1
Exhibit A
FORM OF OPINION OF COMPANY’S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
[In a form reasonably acceptable to the Underwriters]
A-1
Exhibit B
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
[In a form reasonably acceptable to the Underwriters]
B-1
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇▇▇
TO BE DELIVERED PURSUANT
TO SECTION 5(a)
[In a form reasonably acceptable to the Underwriters]
C-1
Exhibit D
FORM OF LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
March , 2007
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representative of the several Underwriters to be
named in the within mentioned Purchase Agreements
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as Representative of the several Underwriters to be
named in the within mentioned Purchase Agreements
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offerings by Mylan Laboratories Inc.
Ladies and Gentlemen:
The undersigned, a securityholder and an executive officer and/or director of Mylan
Laboratories Inc., a Pennsylvania corporation (the “Company”), understands that ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) propose
to enter into (i) a purchase agreement (the “Common Purchase Agreement”) with the Company
providing for the public offering of the Company’s common stock, par value $0.50 per share and (ii)
a purchase agreement (the “Convertible Purchase Agreement” and, together with the Common
Purchase Agreement, the “Purchase Agreements”) providing for the public offering of the
Company’s 1.25% Senior Convertible Notes due 2012. In recognition of the benefit that such
offerings will confer upon the undersigned as a securityholder and an executive officer and/or
director of the Company, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreements that, during a period of 90 days from the date of the Purchase Agreements (the
“Lock-Up Period”), the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
for the sale of, lend or otherwise dispose of or transfer any of the Company’s common stock or
notes or any securities convertible into or exchangeable or exercisable for the Company’s common
stock or notes, whether now owned or hereafter acquired by the undersigned or with respect to which
the undersigned has or hereafter acquires the power of disposition, or file, or cause to be filed,
any registration statement under the Securities Act of 1933, as amended (the “1933 Act”),
with respect to any of the foregoing (collectively, the “Lock-Up Securities”) or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether
any such swap or transaction is to be settled by delivery of common stock, in cash or
otherwise.
Notwithstanding the foregoing, if:
D-1
(1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results or becomes aware that material news or a material event will occur during the
16-day period beginning on the last day of the Lock-Up Period,
the restrictions imposed by this lock-up agreement (this “Lock-Up Agreement”) continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event, as applicable, unless ▇▇▇▇▇▇▇ ▇▇▇▇▇
waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
Lock-Up Period pursuant to the previous paragraph will be delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company
(in accordance with Section 13 of the Common Purchase Agreement and Section 12 of the Convertible
Purchase Agreement) and that any such notice properly delivered will be deemed to have been given
to, and received by, the undersigned. The undersigned further agrees that, prior to engaging in
any transaction or taking any other action that is subject to the terms of this Lock-Up Agreement
during the period from the date of this Lock-Up Agreement to and including the 34th day following
the expiration of the initial Lock-Up Period, it will give notice thereof to the Company and will
not consummate such transaction or take any such action unless it has received written confirmation
from the Company that the Lock-Up Period (as may have been extended pursuant to the previous
paragraph) has expired.
Notwithstanding the foregoing and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) as a bona
fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, or (iii) as a distribution to members, limited partners or
stockholders of the undersigned or to the undersigned’s “affiliates” (as such term is defined in
Rule 501 under the ▇▇▇▇ ▇▇▇) or to any investment fund or other entity controlled or managed by the
undersigned; provided that (1) ▇▇▇▇▇▇▇ ▇▇▇▇▇ receives a signed Lock-Up Agreement for the
balance of the Lock-Up Period from each donee, trustee, distributee or transferee, as the case may
be; (2) any such transfer shall not involve a disposition for value; (3) such transfers are not
required to be reported in any public report or filing with the Securities and Exchange Commission
(other than reports on Form 5), or otherwise; and (4) the undersigned does not otherwise
voluntarily effect any public filing or report regarding such transfer.
For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the Lock-Up Securities except in compliance with the foregoing
restrictions.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
D-2
The undersigned understands that, if both the Common Purchase Agreement and Convertible
Purchase Agreement do not become effective, or if both the Common Purchase Agreement and
Convertible Purchase Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the common stock and 1.25% Senior
Convertible Notes due 2012, respectively, to be sold thereunder, the undersigned shall be released
from all obligations under this Lock-Up Agreement.
The undersigned understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ is entering into the Purchase Agreements and
proceeding with the offerings in reliance upon this Lock-Up Agreement.
D-3
This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
| Very truly yours, | ||||||
| Signature: | ||||||
| Print Name: | ||||||
D-4