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Exhibit 1.2
5,000,000 Shares
OMNICARE, INC.
Common Stock
($1 Par Value)
SUBSCRIPTION AGREEMENT
London, England
[ ], 1996
To: CS FIRST BOSTON LIMITED
XXXXXXXXXX SECURITIES
XXXXXXX XXXXX & COMPANY, L.L.C.
PAINEWEBBER INTERNATIONAL
XXXXX XXXXXX INC.
c/o: CS First Boston Limited ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Madames or Sirs:
1. Introductory. Omnicare, Inc., a Delaware corporation
("Company"), proposes to issue and sell to the several Managers named in
Schedule A hereto ("Managers") 1,000,000 shares of its Common Stock, $1 par
value per share ("Securities"; such 1,000,000 shares of Securities being
hereinafter referred to as the "International Firm Securities"). The Company
also proposes to issue and sell to the Managers and the U.S. Underwriters (as
defined below), at the option of the Managers and the U.S. Underwriters, an
aggregate of not more than 750,000 additional shares ("Optional Securities") of
Securities as set forth below. The International Firm Securities and the
Optional Securities that may be sold to the Managers ("International Optional
Securities") are herein collectively called the "International Securities".
It is understood that the Company is concurrently entering
into an Underwriting Agreement, dated the date hereof ("Underwriting
Agreement"), with certain United States Underwriters listed in Schedule A
thereto (the "U.S. Underwriters") for whom CS First Boston Corporation
("CSFBC"), Xxxxxxxxxx Securities, PaineWebber Incorporated, Xxxxx Xxxxxx Inc.
and Xxxxxxx Xxxxx & Company are acting as representatives (the "U.S.
Representatives"), relating to the concurrent offer and sale by the Company of
4,000,000 shares of Securities (such 4,000,000 shares of Securities being
hereinafter referred to as the "U.S. Firm
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Securities", which together with the Optional Securities that may be sold to
the U.S. Underwriters by the Company ("U.S. Optional Securities") are
hereinafter called the "U.S. Securities")), in the United States and Canada
("U.S. Offering"). The U.S. Securities and the International Securities are
collectively referred to as the "Offered Securities". To provide for the
coordination of their activities, the U.S. Underwriters and the Managers have
entered into an Agreement Between U.S. Underwriters and Managers which permits
them, among other things, to sell the Offered Securities to each other for
purposes of resale.
The Company hereby agrees with the several Managers as
follows:
2. Representations and Warranties of the Company and the
Selling Stockholders. The Company represents and warrants to, and agrees with,
the several Managers that:
(a) A registration statement (No. 333-[ ]), relating to
the Offered Securities, including forms of prospectus relating to the
U.S. Securities and the International Securities, has been filed with
the Securities and Exchange Commission ("Commission") and either (i)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("initial registration statement") has been declared effective, either
(i) an additional registration statement ("additional registration
statement") relating to the Offered Securities may have been filed
with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the
Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered
under the Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (ii) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "Effective
Time" with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the additional
registration statement means (i) if the Company has advised CSFBL
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that it does not propose to amend such registration statement, the
date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised CSFBL that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with
respect to such additional registration statement means that date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to
the initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein, including
all information contained in the additional registration statement (if
any) and including all information (if any) deemed to be a part of the
initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the U.S. Securities
and the form of prospectus relating to the International Securities,
each as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing
is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "U.S. Prospectus", and the "International
Prospectus", respectively; and the U.S. Prospectus and the
International Prospectus are hereinafter collectively referred to as
the "Prospectuses". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
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(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of each of the Prospectuses pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which each of the Prospectuses is included,
each Registration Statement and each of the Prospectuses will conform,
in all respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and each of
the Prospectuses will conform in all respects to the requirements of
the Act and the Rules and Regulations, and none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or either of the Prospectuses based upon written information furnished
to the Company by any Underwriter through the Representatives or by
any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectuses; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in
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which its ownership or lease of property or the conduct of its business
requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectuses; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement and the Underwriting Agreement on each Closing Date (as
defined below), the Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectuses; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(f) There are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Manager or U.S. Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with the sale of the Offered Securities.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act except for such contracts
and agreements as to which the Company has already satisfied its
obligation to file a registration statement under the Act or to
include securities in a registration statement filed by the Company
under the Act.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the
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consummation of the transactions contemplated by this Agreement or the
Underwriting Agreement in connection with the issuance and sale of
Offered Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws.
(i) The execution, delivery and performance of this Agreement
and the Underwriting Agreement and the issuance and sale of the
Offered Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or domestic or foreign order of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties,
or any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement and the Underwriting Agreement, respectively.
(j) This Agreement and the Underwriting Agreement have been
duly authorized, executed and delivered by the Company.
(k) The Company and its subsidiaries have good and marketable
title in fee simple to all real properties and good and marketable
title to all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or to be
made thereof by them; and all leased real and personal property held
by the Company or any of its subsidiaries is held under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by the Company and its
subsidiaries.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might
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have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(o) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), or is subject to any
claim relating to any environmental laws, which violation
or claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole;
and the Company is not aware of any pending investigation which might
lead to such a claim.
(p) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial
or other), business, prospects, results of operations or general
affairs of the Company and its subsidiaries taken as a whole, or would
materially and adversely affect the ability of the Company to perform
its obligations under this Agreement or the Underwriting Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) To the Company's knowledge, the accountants who certified
the financial statements and supporting schedules included or
incorporated by reference in each Registration Statement are
independent public accountants as required by the Act and the Rules
and Regulations.
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(r) The financial statements included in each Registration
Statement and the Prospectuses present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis (except as set forth in the accompanying
footnotes) and comply with the requirements of the Act; and the
schedules present fairly the information required to be stated therein
and comply with the requirements of the Act. The financial
information and statistical data set forth in each of the Prospectus
under the captions "Capitalization," "Selected Consolidated Financial
Data" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" have been prepared on a basis consistent
with the consolidated financial statements of the Company. The pro
forma financial information incorporated by reference in each
Registration Statement comply with the requirements of the Act and the
Rules and Regulations; the assumptions of management described in the
notes to such pro forma financial information provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions described in such notes; the related pro forma
adjustments give appropriate effect to those assumptions and the pro
forma column reflects the proper application of those adjustments to
the historical financial statement amounts in the pro forma condensed
balance sheet and the pro forma condensed statement of income.
(s) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectuses, there has
been no material adverse change, nor any development or event that may
result in a prospective material adverse change, in the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectuses, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(t) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(u) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes and the Company agrees to comply with such Section if prior
to the completion of the distribution of the Offered Securities it
commences doing such business.
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(v) Except where the failure to file would not have a
material adverse effect, all tax returns required to be filed by the
Company or any of its subsidiaries, in any jurisdiction, have been so
filed, and all material taxes, including withholding taxes, penalties
and interest, assessments, fees and other charges due or claimed to be
due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided or those currently payable without material penalty or
interest. No material proposed additional tax assessments have been
asserted in writing against the Company or any of its subsidiaries.
(w) The Offered Securities have been approved for listing on
the New York Stock Exchange (the "Stock Exchange") subject to official
notice of issuance.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
sell to the Managers and the Managers agree, severally and not jointly, to
purchase from the Company at a purchase price of U.S.$[ ] per share, the
respective numbers of shares of International Firm Securities set forth
opposite the names of the Managers in Schedule A hereto.
The Company will deliver the International Firm Securities to
CSFBL for the accounts of the Managers, against payment of the purchase price
in U.S. dollars by certified or official bank check or checks in New York
Clearing House (next day) funds drawn to the order of the Company at the office
of Cravath, Swaine & Xxxxx, at 9:30 A.M., New York time, on [ ], 1996, or
at such other time not later than seven full business days thereafter as CSFBL
and the Company determine, such time being herein referred to as the "First
Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange Act
of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the Offerings.
The certificates for the International Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBL requests and will be made available for checking and packaging at the
above office of Cravath, Swaine & Xxxxx, at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the
Company from time to time not more than 30 days subsequent to the date of the
initial public offering of the Offered Securities, the Managers may purchase
all or less than all of the International Optional Securities, at the purchase
price per Security to be paid for the International Firm Securities. Unless
otherwise agreed between CSFBL and CSFBC, the International Optional Securities
to be purchased by the Managers on any
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Optional Closing Date (as defined below) shall be in the same proportion to all
the Optional Securities to be purchased by the Managers and U.S. Underwriters
on such Optional Closing Date as the International Firm Securities bear to all
the Offered Securities. The Company agrees to sell to the Managers such
International Optional Securities and the Managers agree, severally and not
jointly, to purchase such International Optional Securities. Such
International Optional Securities shall be purchased for the account of each
Manager in the same proportion as the number of shares of International Firm
Securities set forth opposite such Manager's name bears to the total number of
shares of International Firm Securities (subject to adjustment by CSFBL to
eliminate fractions) and may be purchased by the Managers only for the purpose
of covering over-allotments made in connection with the sale of the
International Firm Securities. No Optional Securities shall be sold or
delivered unless the International Firm Securities and the U.S. Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time upon written or telegraphic notice by the Underwriters to the
Company setting forth the number of Optional Securities as to which the several
Underwriters are exercising the Option and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by CSFBC on
behalf of the Managers and the U.S. Underwriters to the Company and Chemed.
Each time for the delivery of and payment of the International
Optional Securities, being herein referred to as an "Optional Closing Date",
which may be the First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a "Closing Date"), shall
be determined by CSFBC but shall be not later than five full business days
after written or telegraphic notice of election to purchase Optional Securities
is given. The Company will deliver the International Optional Securities being
purchased on each Optional Closing Date to CSFBL for the accounts of the
several Managers, against payment of the purchase price therefor by certified
or official bank check or checks in New York Clearing House (next day) funds
drawn to the order of the Company and Chemed, for their respective shares, at
the above office of Cravath, Swaine & Xxxxx. The certificates for the
International Optional Securities will be in definitive form, in such
denominations and registered in such names as CSFBL requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the above office of Cravath, Swaine & Xxxxx, at a
reasonable time in advance of the such Optional Closing Date.
4. Offering by Managers. It is understood that the several
Managers propose to offer the International Securities for sale to the public
as set forth in the International Prospectus.
In connection with the distribution of the International
Securities, the Managers, through a stabilizing manager, may over-allot or
effect transactions on any
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exchange, in any over-the-counter market or otherwise which stabilize or
maintain the market prices of the International Securities at levels other than
those which might otherwise prevail, but in such event and in relation thereto,
the Managers will act for themselves and not as agents of the Company, and any
loss resulting from over-allotment and stabilization will be borne, and any
profit arising therefrom will be beneficially retained, by the Managers. Such
stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company. The Company agrees
with the several Managers that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file each of the Prospectuses with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBL, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
The Company will advise CSFBL promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a
portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBC.
(b) The Company will advise CSFBL promptly of any proposal to
amend or supplement the initial or any registration statement as filed
or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or either of the
Prospectuses and will not effect such amendment or supplementation
without CSFBL's prior consent; and the Company will also advise CSFBL
promptly of the effectiveness of each Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or either of the Prospectuses and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
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(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any U.S. Underwriter, Manager or dealer, any event
occurs as a result of which either or both of the Prospectuses as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
either or both of the Prospectuses to comply with the Act, the Company
will promptly notify CSFBL of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBL's consent
to, nor the Managers' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes the Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Managers copies of the
Registration Statements (five of which will be signed and will include
all exhibits), each preliminary prospectus relating to the
International Securities, and until completion of the distribution of
the International Securities as determined by CSFBL, the International
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as CSFBL
requests. The Company will pay the expenses of printing and
distributing to the Managers all such documents. The International
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement.
(f) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company
in any jurisdiction outside the United States and Canada that would
permit a public offering of the Offered Securities, or possession or
distribution of the International Prospectus, or any amendment or
supplement thereto, or any related
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preliminary prospectus issued in connection with the offering of the
Offered Securities, or any other offering material, in any country or
jurisdiction where action for that purpose is required.
(g) During the period of five years hereafter, the Company
will furnish to CSFBL and, upon request, to each of the other
Managers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to the CSFBL (i) as soon as available, a copy of
each report or definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBL may reasonably request.
(h) The Company will indemnify and hold harmless the Managers
against any documentary, stamp or similar issuance tax, including any
interest and penalties, on the creation, issuance and sale of the
Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Company hereunder shall be
made without withholding or deduction or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Company is compelled by law to deduct or withhold such taxes, duties
or charges. In that event, the Company shall pay such additional
amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would
have been received if no withholding or deduction had been made.
(i) The Company will reimburse the Managers (if and to the
extent incurred by them) for any travel expenses of the Company's
officers and
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employees and other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities.
(j) The Company agrees with the several Managers that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement and will reimburse the
Managers (if and to the extent incurred by them) for any filing fees
and other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFBL designates and the printing of memoranda
relating thereto, for the filing fee of the National Association of
Securities Dealers, Inc. relating to the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the
Prospectuses (including any amendments and supplements thereto) to the
Managers.
6. Conditions of the Obligations of the Managers. The
obligations of the several Managers to purchase and pay for the International
Firm Securities on the First Closing Date and the International Optional
Securities to be purchased on each Optional Closing Date will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Managers shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Price Waterhouse LLP, in the agreed form.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, the Effective Time shall have occurred not later than 10:00
P.M., New York time, on the date of this Agreement or such later date
as shall have been consented to by CSFBL. If the Effective Time of
the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectuses are printed
and distributed to any Manager, or shall have occurred at such later
date as shall have been consented to by CSFBL. If the Effective Time
of the Initial
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Registration Statement is prior to the execution and delivery of this
Agreement, each of the Prospectuses shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Managers, shall
be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of
CSFBL, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the International Securities, whether
in the primary market or in respect of dealings in the secondary
market; (ii) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Company or its subsidiaries which, in the judgment of CSFBL,
materially impairs the investment quality of the Offered Securities;
(iii) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iv) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by Federal or New York authorities; or
(vi) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if,
in the judgment of CSFBL, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the
International Securities.
(d) The Managers shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Xxxx & Xxxxx P.L.L., counsel for the
Company, in the agreed form.
(e) The Managers shall have received an opinion, dated such
Closing Date, of Xxxx Xxxxx Xxxx & XxXxxx, healthcare counsel for the
Company, in the agreed form.
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(f) The Managers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Managers, such opinions and letters, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectuses and other related matters as
the Representatives may require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The Managers shall have received a certificate, dated
such Closing Date, of the President or any Vice- President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such
Closing Date, that no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission,
that the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Act, prior to the
time the Prospectus was printed and distributed to any Manager, and
that, subsequent to the date of the most recent financial statements
in the Prospectuses, there has been no material adverse change in the
financial position or results of operation of the Company and its
subsidiaries except as set forth in or contemplated by the
Prospectuses or as described in such certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of Price Waterhouse LLP, which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than five days prior to such Closing Date for the purpose of this
subsection.
(i) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the U.S. Optional Securities, as
the case may be, pursuant to the Underwriting Agreement.
Documents described as being "in the agreed form" are
documents which are in the forms which have been initialled for the purpose of
identification by Cravath, Swaine & Xxxxx, copies of which are held by the
Company and CSFBL with such changes as CSFBL may approve. The Company will
furnish the Managers with such conformed copies of such opinions, certificates,
letters and documents as the Managers reasonably request. CSFBL may in its
sole discretion waive on behalf
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of the Managers compliance with any conditions to the obligations of the
Managers hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Manager against any losses, claims, damages or
liabilities, joint or several, to which such Manager may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Manager for any legal or other expenses
reasonably incurred by such Manager in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Manager
through CSFBL specifically for use therein, it being understood and agreed that
the only information furnished by any Manager consists of the information
described as such in subsection (b) below.
(b) Each Manager will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, either of the
Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Manager
through CSFBL specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Manager consists of the following information in
the International Prospectus furnished on behalf of each Manager: the last
paragraph at the bottom of the cover page concerning the terms of the offering
by the Managers, the legend concerning over-allotments and stabilizing on the
inside front cover page and the concession and reallowance figures appearing in
the paragraph under the caption "Subscription and Sale".
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(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion between the Company and the Managers as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Managers on the other from the offering of the International Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Managers, respectively, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Managers shall be deemed to be in the same proportion as
the total net proceeds from the offering of the International Securities
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Managers. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Managers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission.
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The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Managers shall be required to contribute
any amounts in excess of the amount by which the total price at which the
International Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Manager has
otherwise been required to pay by reason of 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Managers' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Manager within the meaning of the Act; and the obligations of the
Managers under this Section shall be in addition to any liability which the
respective Managers may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Managers. If any Manager or Managers default
in their obligations to purchase International Securities hereunder on either
the First Closing Date or any Optional Closing Date and the aggregate number of
shares of International Securities that such defaulting Manager or Managers
agreed but failed to purchase does not exceed 10% of the total number of shares
of International Securities that the Managers are obligated to purchase on such
Closing Date, CSFBL may make arrangements satisfactory to the Company for the
purchase of such International Securities by other persons, including any of
the Managers, but if no such arrangements are made by such Closing Date the
non-defaulting Managers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the International Securities that
such defaulting Managers agreed but failed to purchase on such Closing Date.
If any Manager or Managers so default and the aggregate number of shares of
International Securities with respect to which such default or defaults occur
exceeds 10% of the total number of shares of International Securities that the
Managers are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBL and the Company for the purchase of such International
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Manager or the Company, except as provided in Section 9
(provided that if
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such default occurs with respect to International Optional Securities after the
First Closing Date, this Agreement will not terminate as to the International
Firm Securities or any International Optional Securities purchased prior to
such termination). As used in this Agreement, the term "Manager" includes any
person substituted for a Manager under this Section. Nothing herein will
relieve a defaulting Manager from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Managers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Manager, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the International Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the International Securities by the Managers is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 5 and the respective obligations of the Company and the
Managers pursuant to Section 7 shall remain in effect and if any International
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the International Securities by the Managers is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), or (v) of Section 6(c), the Company will reimburse the Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the International
Securities.
10. Notices. All communications hereunder will be in
writing and, if sent to the Managers, will be mailed, delivered or telexed and
confirmed to CSFBL at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention:
Company Secretary, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 2800 Chemed Center, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx; provided, however, that
any notice to a Manager pursuant to Section 7 will be mailed, delivered or
telexed and confirmed to such Manager.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
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12. Representation of Managers. CSFBL will act for the
several Managers in connection with this financing, and any action under this
Agreement taken by CSFBL will be binding upon all the Managers.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
15. Miscellaneous. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Managers'
understanding of our agreement, kindly sign and return to us a counterparts
hereof, whereupon this Agreement will become a binding agreement between the
Company and the several Managers in accordance with its terms.
Very truly yours,
OMNICARE, INC.
by
-------------------------------
Name:
Title:
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The foregoing Subscription Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON LIMITED
XXXXXXXXXX SECURITIES
XXXXXXX XXXXX & COMPANY, L.L.C.
PAINEWEBBER INTERNATIONAL
XXXXX XXXXXX INC.
By CS FIRST BOSTON LIMITED
by
---------------------------
Name:
Title:
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SCHEDULE A
Number of International
Manager Firm Securities
------- -----------------------
CS First Boston Limited. . . . . . . . . . . . . . . [ ]
Xxxxxxxxxx Securities. . . . . . . . . . . . . . . . [ ]
Xxxxxxx Xxxxx & Company, L.L.C.. . . . . . . . . . . [ ]
PaineWebber International. . . . . . . . . . . . . . [ ]
Xxxxx Xxxxxx Inc.. . . . . . . . . . . . . . . . . . [ ]
_____
Total . . . . . . . . . . . [ ]
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