EXPRESS SCRIPTS, INC. $1,500,000,000 3.125% Senior Notes Due 2016 UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
EXPRESS SCRIPTS, INC.
$1,500,000,000 3.125% Senior Notes Due 2016
April 27, 2011
Citigroup Global Markets Inc.,
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000
RBS Securities inc.,
000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX 00000
As representatives (the “Representatives”) of the Several Underwriters
Dear Sirs:
1. Introductory. Express Scripts, Inc., a Delaware corporation (the “Company”), agrees with
the several Underwriters named in Schedule A hereto (the “Underwriters”) to issue and sell to the
several Underwriters $1,500,000,000 aggregate principal amount of its 3.125% Senior Notes due 2016
(the “Notes”). The Notes are hereinafter referred to as the “Offered Securities.” The Offered
Securities will be unconditionally guaranteed (the “Guarantees”) by the subsidiaries of the Company
listed on Schedule B hereto (the “Subsidiary Guarantors”). The Notes shall be issued under the
sixth supplemental indenture dated as of the Closing Date (the “Sixth Supplemental Indenture”) to
the base indenture dated as of June 2, 2009, among the Company, the Subsidiary Guarantors party
thereto and Union Bank, N.A., as Trustee (the “Base Indenture” and, together with the Sixth
Supplemental Indenture, the “Indenture”).
2. Representations and Warranties of the Company and the Subsidiary Guarantors. The Company
and each Subsidiary Guarantor jointly and severally represent and warrant to, and agrees with, the
several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No.
333-159654), including a related prospectus or prospectuses, covering the registration of
the Offered Securities under the Act, which has become effective. “Registration Statement”
at any particular time means such registration statement in the form then filed with the
Commission, including Post-Effective Amendment No. 1 to such registration statement and any
other amendment thereto, any document incorporated by reference therein and all 430B
Information and all 430C Information with respect to such registration statement, that in
any case has not been superseded or modified. “Registration Statement” without reference
to a time means the Registration Statement as of the Effective Time. For purposes of this
definition, 430B Information shall be considered to be included in the Registration
Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 2:15 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Offered Securities
means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule C to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities 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).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
“Order” means any judgment, order, injunction, decree, writ, stipulation, ruling,
determination, award, permit or license of any governmental entity or any arbitrator.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Trust Indenture Act, the Rules and
Regulations, the auditing principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company
Accounting Oversight Board and the rules of the NASDAQ Stock Market (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information
with respect to the Registration Statement. For purposes of the foregoing definition, 430B
Information shall be considered to be included in the Statutory Prospectus only as of the
actual time that form of prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means the Trust Indenture Act of 1939.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the Registration
Statement initially became effective, (B) at the time of each amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether by post effective
amendment, incorporated report or form of prospectus), (C) at the Effective Time relating
to the Offered Securities and (D)
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on the Closing Date, the Registration Statement conformed and will conform in all
material respects to the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and did not and will 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 and (ii) (A) on its date, (B) at the time of filing the
Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus
will conform in all material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and will 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. The preceding sentence does not apply to (i) that
part of the Registration Statement which will constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in
or omissions from any such document based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that described as such in Section
8(b) hereof.
(c) Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status.
(A) At the time of initial filing of the Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the
exemption of Rule 163, the Company was a “well known seasoned issuer” as defined in Rule
405, including not having been an “ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The
Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, that initially became effective within three years of the date of this
Agreement.
(iii) Eligibility to Use Automatic Shelf Registration Form. The Company has
not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to
use of the automatic shelf registration statement form. If at any time when
Offered Securities remain unsold by the Underwriters the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible
to use the automatic shelf registration statement form, the Company will (i)
promptly notify the Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Offered
Securities, in a form satisfactory to the Representatives, (iii) use its best
efforts to cause such registration statement or post-effective amendment to be
declared effective as soon as practicable, and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the registration statement that was the
subject of the Rule 401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(iv) Filing Fees. The Company has paid or shall pay the required Commission
filing fees relating to the Offered Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date
of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in
Rule 405.
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(e) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus supplement, dated April 27, 2011 including the base prospectus,
dated April 27, 2011 (which is the most recent Statutory Prospectus distributed to
investors generally), and the other information, if any, stated in Schedule C to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included 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. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses. 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 Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. 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 then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such event or
development, 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 under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
(g) Good Standing of the Company. The Company (i) has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package and (ii) is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except in the case of
clause (ii) where the failure to so qualify would not result in a 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”).
(h) Subsidiary Guarantors. Each Subsidiary Guarantor (i) has been duly organized and
is existing and in good standing under the laws of the jurisdiction of its organization,
with power and authority (corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package and (ii) is duly qualified to do
business as a foreign corporation, limited partnership, limited liability company or other
entity in good standing, where applicable, in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such qualification,
except in the case of clause (ii) where the failure to so qualify would not have a Material
Adverse Effect; and all of the issued and outstanding capital stock of each Subsidiary
Guarantor of the Company has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each Subsidiary Guarantor owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and defects.
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(i) Execution and Delivery of Indenture; Guarantees; Offered Securities. The
Indenture has been duly authorized and has been duly qualified under the Trust Indenture
Act by the Company and each Subsidiary Guarantor; the Guarantees have been duly authorized
by each Subsidiary Guarantor; the Offered Securities have been duly authorized and, when
the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing
Date, the Indenture will have been duly executed and delivered (assuming that the Indenture
has been duly authorized, executed and delivered by the Trustee), such Offered Securities
will have been duly executed, authenticated, issued and delivered (assuming that the
Offered Securities have been authenticated in the manner provided in the Indenture by the
Trustee), will conform to the information in the General Disclosure Package and to the
description of such Offered Securities contained in the Final Prospectus and the Indenture
and such Offered Securities and, in the case of the Subsidiary Guarantors, such Guarantees,
will constitute valid and legally binding obligations of the Company and each Subsidiary
Guarantor, as applicable, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles.
(j) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any governmental agency or body or any court is
necessary or required for the execution, delivery or performance by the Company or the
Subsidiary Guarantors of their obligations under this Agreement, the Indenture, the Offered
Securities, the Guarantees, or the consummation by the Company or the Subsidiary Guarantors
of the transactions contemplated by this Agreement or the Indenture, except such as have
been obtained, or made and such as may be required under state securities laws.
(k) Title to Property. The Company and each Subsidiary Guarantor have good and
marketable title to all of their respective real properties and good title to their
respective personal properties, in each case free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right except (A) as disclosed in
the General Disclosure Package or (B) as does not have a Material Adverse Effect and does
not interfere with the use made and proposed to be made of such property by the Company and
each Subsidiary Guarantor considered as one enterprise; and all of the leases and
subleases of the Company and each Subsidiary Guarantor considered as one enterprise, and
under which the Company and any Subsidiary Guarantor holds properties described in the
General Disclosure Package, are in full force and effect, except such failures to be in
full force and effect that would not, individually or in the aggregate, result in a
Material Adverse Effect.
(l) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance by the Company and each of the Subsidiary Guarantors of the
Indenture and this Agreement and compliance with the terms and provisions thereof, the
consummation of the transactions herein and therein contemplated, the issuance and sale of
the Offered Securities and the issuance of the Guarantees and compliance with the terms and
provisions thereof, will not result in a breach or violation of any of the terms and
provisions or result in the imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary Guarantor pursuant to, (i) the charter or
by-laws or similar organizational documents of the Company or any Subsidiary Guarantor,
(ii) any statute, rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any Subsidiary
Guarantor or any of their properties, or (iii) any agreement or instrument to which the
Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary
Guarantor is bound or to which any of the properties of the Company or any Subsidiary
Guarantor is subject, except in the case of clauses (ii) and (iii), for such breaches,
defaults, liens, charges or encumbrances that would not, individually or in the aggregate,
result in a Material Adverse Effect.
(m) Absence of Existing Defaults and Conflicts. Neither of the Company nor any
Subsidiary Guarantor is in violation of its respective organizational documents or in
default (or with the giving of notice or lapse of time would be in default) under any
existing obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or
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other agreement or instrument to which any of them is a party or by which any of them
is bound or to which any of the properties of any of them is subject, except such defaults
that would not, individually or in the aggregate, result in a Material Adverse Effect.
(n) Authorization of Agreements. This Agreement has been duly authorized, executed
and delivered by the Company and each Subsidiary Guarantor.
(o) Possession of Licenses and Permits. The Company and the Subsidiary Guarantors (A)
possess, and are in compliance with the terms of, all adequate certificates,
authorizations, franchises, licenses and permits (including certificates of need, licenses,
pharmacy licenses, Medicare provider numbers, accreditations and other similar
documentation or approvals of any local health departments or any governmental authority)
(collectively, “Licenses”) necessary or material to the conduct of the business now
conducted except where the failure to possess any such License would not result in a
Material Adverse Effect and (B) have not received any notice of proceedings relating to the
revocation or modification of any Licenses that, if determined adversely to the Company or
any Subsidiary Guarantor would individually or in the aggregate, have a Material Adverse
Effect.
(p) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Description of the Notes” and “Certain United States
Federal Income Tax Considerations to Non-U.S. Holders”, insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements, documents or proceedings and
present the information required to be shown.
(q) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action that is designed to or that has constituted or that would reasonably be expected to
cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(r) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth
in the General Disclosure Package, the Company, its subsidiaries and the Company’s Board of
Directors (the “Board”) are in compliance in all material respects with Xxxxxxxx-Xxxxx. The
Company maintains a system of internal controls, including, but not limited to, disclosure
controls and procedures, internal controls over accounting matters and financial reporting,
an internal audit function and legal and regulatory compliance controls (collectively,
“Internal Controls”) that comply with the Securities Laws and are sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. Generally Accepted Accounting
Principles and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company’s
Internal Control over financial reporting is effective and the Company is not aware of any
material weakness in its Internal Control over financial reporting. Except as disclosed in
the Disclosure Package and the Final Prospectus, since December 31, 2010, there has been no
change in the Company’s Internal Control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s Internal Control over
financial reporting. The Company maintains “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have been designed to ensure
that material information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective.
(s) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or investigations by or
before any
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court or governmental agency or body, domestic or foreign), involving the Company or
any of its subsidiaries or any of their respective properties that, if determined adversely
to the Company or any subsidiary, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of the Company or any
Subsidiary Guarantor to perform its obligations under the Indenture (including each
Guarantee set forth therein) or this Agreement; and no such actions, suits or proceedings
(including any inquiries or investigations by any court or governmental agency or body,
domestic or foreign) are, to the Company’s knowledge, threatened.
(t) Medicare; Medicaid. Except as disclosed in the General Disclosure Package and the
Final Prospectus, neither the Company nor any Subsidiary Guarantor has received written
notice of any, and to the knowledge of any officer or director of the Company there are no
material Medicare, Medicaid, or any other managed care recoupment or recoupments of any
third-party payor being sought, threatened, requested or claimed against the Company or any
Subsidiary Guarantor.
(u) Financial Statements. The financial statements included or incorporated by
reference in the Registration Statement and the General Disclosure Package together with
the related schedules and notes present fairly in all material respects 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 and the schedules included or incorporated by
reference in the Registration Statement present fairly the information required to be
stated therein, and the assumptions used in preparing the pro forma financial statements
included in the Registration Statement and the General Disclosure Package provide a
reasonable basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical financial statement
amounts.
(v) Capitalization. The stockholder’s equity and long-term indebtedness of the
Company as of March 31, 2011 was as set forth in the General Disclosure Package in the
column entitled “Actual” under the caption “Capitalization”; and there has not been (i) any
subsequent issuance of capital stock of the Company, except for subsequent issuances, if
any, pursuant to any outstanding securities, benefit or compensation plans disclosed in the
General Disclosure Package or (ii) any subsequent increase, if any, in the outstanding
principal amount of long-term indebtedness, except as otherwise disclosed in the General
Disclosure Package or under instruments outstanding at March 31, 2011.
(w) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest financial statements
included or incorporated by reference in the General Disclosure Package (i) there has been
no change, nor any development or event involving a prospective change, in the condition
(financial or otherwise), results of operations, business or properties of the Company and
its subsidiaries, taken as a whole, that is material and adverse, (ii) except as disclosed
in or contemplated by the General Disclosure Package, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock and (iii) except as disclosed in or contemplated by the General Disclosure Package,
there has been no material adverse change in the capital stock, short-term indebtedness,
long-term indebtedness, net current assets or net assets of the Company or its
subsidiaries.
(x) Investment Company Act. 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 General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940 (the “Investment Company Act”).
(y) Anti-Bribery Laws. Neither the Company nor any of its subsidiaries or any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries
is aware of or has
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taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA; and
the Company, its subsidiaries and its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(z) Money Laundering Laws. The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial record keeping and
reporting requirements relating to money laundering applicable to the Company and its
subsidiaries and, so far as the Company is aware, any related or similar statutes, rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(aa) OFAC. None of the Company or any of its subsidiaries, or any director, officer,
agent, employee or affiliate of the Company or any of its subsidiaries is currently subject
to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of
the Offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and conditions set forth
herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase price of 98.997% of
the principal amount thereof of the Notes, the respective principal amounts of Offered Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Offered Securities to or as instructed by the Representatives for
the accounts of the several Underwriters in a form reasonably acceptable to the Representatives
against payment of the purchase price by the Underwriters in Federal (same day) funds by wire
transfer to an account at a bank acceptable to the Representatives drawn to the order of the
Company at the office of Cravath, Swaine & Xxxxx LLP, at 10:00 A.M., New York time, on May 2, 2011,
or at such other time not later than seven full business days thereafter as the Representatives and
the Company determine, such time being herein referred to as the “Closing Date”. For purposes of
Rule 15c6-1 under the Exchange Act, the 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 offering. The Offered Securities so to be delivered
or evidence of their issuance will be made available for checking at the above office of Cravath,
Swaine & Xxxxx LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company covenants and agrees with the several
Underwriters that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424,
within the time period prescribed. The Company has complied and will comply with Rule 433.
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(b) Filing of Amendments; Response to Commission Requests. Prior to the termination
of the offering of the Offered Securities, the Company will promptly advise the
Representatives of any proposal to amend or supplement the Registration Statement or any
Statutory Prospectus at any time and will offer the Representatives a reasonable
opportunity to comment on any such amendment or supplement; and the Company will also
advise the Representatives promptly of (i) the filing of any such amendment or supplement,
(ii) any request by the Commission or its staff for any amendment to the Registration
Statement, for any supplement to any Statutory Prospectus or for any additional
information, (iii) the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or the threatening of any proceeding for that
purpose, and (iv) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer, any event occurs as a
result of which the Final Prospectus 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 the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission
and furnish, at its own expense, to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the date of this
Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the
Final Prospectus and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives reasonably request. The Company
will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution; provided that in no
event shall the Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to service of process
in suits, other than those arising out of the offering or sale of the Offered Securities,
in any jurisdiction where it is not now so subject.
(g) Payment of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including but not limited to any filing fees and
other expenses (including reasonable fees and disbursements of counsel to the Underwriters)
incurred in connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as the Representatives designate and the preparation and printing of
memoranda relating thereto, any fees charged by investment rating agencies for the rating
of the Offered Securities, costs and expenses relating to investor presentations or any
“road show” in connection with the offering and sale of the Offered Securities including,
without limitation, any travel expenses of the Company’s
9
officers and employees and any other expenses of the Company, including the chartering
of airplanes, fees and expenses in connection with the registration of the Offered
Securities under the Exchange Act, and expenses incurred in distributing preliminary
prospectuses and the Final Prospectus (including any amendments and supplements thereto) to
the Underwriters and for expenses incurred for preparing, printing and distributing any
Issuer Free Writing Prospectuses to investors or prospective investors.
(h) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Offered Securities
hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(i) Absence of Manipulation. Neither Company nor any Subsidiary Guarantor will take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Offered Securities.
(j) Restriction on Sale of Securities. Neither the Company nor any Subsidiary
Guarantor will offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the Act relating to
United States dollar-denominated debt securities issued or guaranteed by the Company or any
Subsidiary Guarantor and having a maturity of more than one year from the date of issue, or
publicly disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Representatives for a period beginning on
the date hereof and ending 90 days after the Closing Date.
6. Free Writing Prospectuses. (a) 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 Offered Securities
that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the
Representatives are hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
represents that it has treated and 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 Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
(b) Term Sheets. The Company will prepare a final term sheet relating to the Offered
Securities, containing only information that describes the final terms of the Offered
Securities and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) following the date such
final terms have been established for all classes of the offering of the Offered
Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted
Free Writing Prospectus for purposes of this Agreement. The Company also consents to the
use by any Underwriter of a free writing prospectus that contains only (i)(x) information
describing the preliminary terms of the Offered Securities or their offering or (y)
information that describes the final terms of the Offered Securities or their offering and
that is included in the final term sheet of the Company contemplated in the first sentence
of this subsection or (ii) other information that is not “issuer information,” as defined
in Rule 433, it being understood that any such free writing prospectus referred to in
clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of
this Agreement.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to
the accuracy of the representations and warranties of the Company and the Subsidiary Guarantors
herein (as though made on the Closing Date), to the accuracy of the statements of Company officers
made pursuant to the provisions
10
hereof, to the performance by the Company and each Subsidiary Guarantor of its obligations
hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and the Closing Date, of PricewaterhouseCoopers LLP,
confirming that they are a registered public accounting firm and independent public
accountants with respect to the Company, within the meaning of the Securities Laws and
substantially in the form of Schedule D hereto (except that, in any letter dated the
Closing Date, the specified date referred to in Schedule D hereto shall be a date no more
than three days prior to the Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or any Underwriter, shall be contemplated by the
Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties of the Company and its subsidiaries taken as a whole,
which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any “nationally recognized statistical
rating organization” (as defined under Section 3 of the Exchange Act), or any public
announcement that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating); (iii)
any change in U.S. or international financial, political or economic conditions or currency
exchange rates or exchange controls the effect of which is such as to make it, in the
judgment of the Representatives, impractical or inadvisable to market or to enforce
contracts for the sale of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any suspension or material limitation of
trading in securities generally on the NASDAQ Stock Market, or any setting of minimum or
maximum prices for trading on such exchange; (v) or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by any U.S. Federal or, New York authorities; (vii) any major
disruption of settlements of securities, payment, or clearance services in the United
States or any other country where such securities are listed; or (viii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity or emergency
if, in the judgment of the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency is such as to make it impractical or
inadvisable to market the Offered Securities or to enforce contracts for the sale of the
Offered Securities.
(d) Opinion of Counsel for Company and the Subsidiary Guarantors. The Representatives
shall have received an opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Company and the Subsidiary Guarantors, substantially in the form
set forth in Schedule E hereto.
(e) Opinion of General Counsel. The Representatives shall have received an opinion,
dated the Closing Date, of Xxxxx Xxxxxx, General Counsel of the Company substantially in
the form set forth in Schedule F hereto.
(f) Opinions of Local Counsel for the Subsidiary Guarantors. The Representatives
shall have received opinions, dated the Closing Date, of local counsel for the Subsidiary
Guarantors, substantially in the form set forth in Schedule G hereto.
(g) Opinion of Regulatory Counsel. The Representatives shall have received an
opinion, dated the Closing Date, of Ropes & Xxxx LLP, special regulatory counsel of the
Company, to the effect the statements in the Disclosure Package and Final Prospectus
(including the documents
11
incorporated by reference therein) under any headings relating to regulatory
disclosure, insofar as they constitute summaries of legal documents, legal proceedings or
refer to matters of law or legal conclusions, are accurate in all material respects.
(h) Opinion of Counsel for Underwriters. The Representatives shall have received from
Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to such 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.
(i) Officer’s Certificate. The Representatives shall have received a certificate,
dated the Closing Date, of an executive officer of the Company and a principal financial or
accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company and the Subsidiary Guarantors in this
Agreement are true and correct; the Company and the Subsidiary Guarantors have complied
with all agreements and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose have been
instituted or, to their knowledge and after reasonable investigation, are threatened by the
Commission; and, subsequent to the date of the most recent financial statements in the
General Disclosure Package, there has been no Material Adverse Effect except as set forth
in the General Disclosure Package or as described in such certificate.
(j) Indenture. The Indenture shall have been duly executed and delivered, and the
Underwriters shall have received copies, conformed and executed thereof.
The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request. The Representatives
may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) Indemnification of the Underwriters. Each of the
Company and the Subsidiary Guarantors jointly and severally will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each
person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims,
damages or liabilities, joint or several, to which such Indemnified Party may become subject, under
the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material fact contained in
any part of the Registration Statement at any time or arise out of or are based upon the omission
or alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) any untrue statement or alleged untrue statement of any
material fact contained in any Statutory Prospectus as of any time, the Final Prospectus, any
Issuer Free Writing Prospectus or the General Disclosure Package, or arise out of or are based upon
the omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending against any loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection
with the enforcement of this provision with respect to any of the above as such expenses are
incurred; provided, however, that the Company and the Subsidiary Guarantors 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 Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
12
(b) Indemnification of the Company. Each Underwriter will severally and not jointly
indemnify and hold harmless the Company, each of the Subsidiary Guarantors, each of their
respective directors and each of their respective officers who signs a Registration
Statement and each person, if any, who controls the Company or any Subsidiary Guarantor
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an
“Underwriter Indemnified Party”), against any and all losses, claims, damages or
liabilities to which such Underwriter Indemnified Party may become subject, under the Act,
the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any part of the Registration Statement at any time or arise out of or are
based upon the omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii) any untrue
statement or alleged untrue statement of any material fact contained in any Statutory
Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or the
General Disclosure Package, or arise out of or are based upon the omission or alleged
omission of a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, 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 Underwriter through
the Representatives specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by such Underwriter Indemnified Party in connection with
investigating or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Underwriter
Indemnified Party is a party thereto), whether threatened or commenced, based upon any such
untrue statement or omission, or any such alleged untrue statement or omission as such
expenses are incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the Statutory
Prospectus and Final Prospectus furnished on behalf of each Underwriter: the sentences
related to concessions and reallowances, and the two paragraphs related to stabilizing
transactions, over-allotment transactions, syndicate covering transactions and penalty
bids.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified
party under this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel 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 (i) includes an
unconditional release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an indemnified
party.
13
(d) Contribution. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or (b) above,
then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Subsidiary Guarantors on the one hand and
the Underwriters on the other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Subsidiary Guarantors
on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the Company and
the Subsidiary Guarantors on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Subsidiary Guarantors bear to the total
underwriting discounts and commissions received by the Underwriters. 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 any Subsidiary Guarantor or the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no 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 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 Underwriters’ obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not joint. The
Company, the Subsidiary Guarantors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) 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 in this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on the Closing Date and the aggregate principal amount of
Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of Offered Securities that the Underwriters are
obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase
on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal
amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities that the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to the Representatives and the Company for the
purchase of the Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 10. As used in this Agreement, the term
“Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Subsidiary
Guarantors or
14
their respective officers and of the several Underwriters 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 Underwriter, the Company, the Subsidiary
Guarantors, or any of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 9 hereof, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and
the respective obligations of the Company, the Subsidiary Guarantors and the Underwriters pursuant
to Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been
purchased hereunder, the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to Credit Suisse Securities
(USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, Citigroup Global
Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: General Counsel and RBS
Securities Inc., 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Debt Capital Markets
Syndicate, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it
at Express Scripts, Inc., Xxx Xxxxxxx Xxx, Xx. Xxxxx, XX 00000, Attention: Xxxxx Xxxxxx, General
Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. 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 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representatives jointly will be binding upon all the Underwriters.
14. 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.
15. Absence of Fiduciary Relationship. The Company and the Subsidiary Guarantors acknowledge
and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of Offered Securities and that no fiduciary,
advisory or agency relationship between the Company and the Subsidiary Guarantors on the
one hand and the Representatives on the other hand has been created in respect of any of
the transactions contemplated by this Agreement or the Final Prospectus, irrespective of
whether the Representatives have advised or are advising the Company and the Subsidiary
Guarantors on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms-length negotiations
with the Representatives and the Company is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Subsidiary Guarantors have
been advised that the Representatives and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and the
Subsidiary Guarantors and that the Representatives have no obligation to disclose such
interests and transactions to the Company and the Subsidiary Guarantors by virtue of any
fiduciary, advisory or agency relationship; and
15
(d) Waiver. The Company and the Subsidiary Guarantors waive, to the fullest extent
permitted by law, any claims they may have against the Representatives for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives shall
have no liability (whether direct or indirect) to the Company or any Subsidiary Guarantor
in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company or any Subsidiary Guarantor, including
stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and each Subsidiary Guarantor hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company and each Subsidiary Guarantor irrevocably and unconditionally waive any objection to
the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The
City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit or proceeding in any such court has been brought in an inconvenient
forum.
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and each Subsidiary Guarantor and the several Underwriters in
accordance with its terms.
16
Very truly yours, EXPRESS SCRIPTS, INC. |
||||
By: | /s/ Xxxxxx Xxx | |||
Name: | Xxxxxx Xxx | |||
Title: | Chief Executive Officer | |||
AIRPORT HOLDINGS, LLC ESI REALTY, LLC |
||||
By: | Express Scripts, Inc., as sole Member | |||
By: | /s/ Xxxxxx Xxx | |||
Name: | Xxxxxx Xxx | |||
Title: | Chief Executive Officer | |||
00
XXXXXXX XXXX, INC. CARE CONTINUUM, INC. CFI OF NEW JERSEY, INC. CHESAPEAKE INFUSION, INC. CONNECTYOURCARE COMPANY LLC CONNECTYOURCARE LLC CURASCRIPT PBM SERVICES INC. DIVERSIFIED PHARMACEUTICAL SERVICES, INC. ESI ACQUISITION, INC. ESI CLAIMS, INC. ESI ENTERPRISES, LLC ESI MAIL ORDER PROCESSING, INC. EXPRESS SCRIPTS CANADA HOLDING CO. EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC EXPRESS SCRIPTS SALES DEVELOPMENT CO. FRECO, INC. FREEDOM SERVICE COMPANY, LLC HEALTHBRIDGE, INC. HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. iBIOLOGIC, INC. IVTX, INC. LYNNFIELD COMPOUNDING CENTER, INC. LYNNFIELD DRUG, INC. MATRIX GPO LLC NATIONAL PRESCRIPTION ADMINISTRATORS, INC. PRIORITY HEALTHCARE CORPORATION PRIORITY HEALTHCARE CORPORATION WEST PRIORITY HEALTHCARE DISTRIBUTION, INC. PRIORITY HEALTHCARE PHARMACY, INC. XXXXXXXXXXXXXXXXXX.XXX, INC. SINUSPHARMACY, INC. SPECIALTY INFUSION PHARMACY, INC. SPECTRACARE, INC. SPECTRACARE HEALTH CARE VENTURES, INC. SPECTRACARE INFUSION PHARMACY, INC. VALUE HEALTH, INC. XXXXXXXXXXXX.XXX, INC. |
|||
By: | /s/ Xxxxx X. Xxxxxx | ||
Name: | Xxxxx X. Xxxxxx | ||
Title: | Vice President |
18
CURASCRIPT, INC. ESI MAIL PHARMACY SERVICE, INC. EXPRESS SCRIPTS SPECIALITY DISTRIBUTION SERVICES, INC. EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. MOORESVILLE ON-SITE PHARMACY, LLC |
|||
By: | /s/ Xxxxxxx XxXxxxx | ||
Name: | Xxxxxxx XxXxxxx | ||
Title: | President |
19
ESI-GP HOLDINGS, INC. ESI RESOURCES, INC. |
||||
By: | /s/ Xxx Xxxxxxxxx | |||
Name: | Xxx Xxxxxxxxx | |||
Title: | President | |||
ESI PARTNERSHIP |
||||
By: | Express Scripts, Inc., as Partner | |||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Vice President and Deputy General Counsel | |||
By: | ESI-GP Holdings, Inc., as Partner | |||
By: | /s/ Xxx Xxxxxxxxx | |||
Name: | Xxx Xxxxxxxxx | |||
Title: | President | |||
20
SPECTRACARE OF INDIANA |
||||
By: | Spectracare, Inc., as Partner | |||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President | |||
By: | Care Continuum, Inc., as Partner | |||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President | |||
EXPRESS SCRIPTS MSA, LLC EXPRESS SCRIPTS WC, INC. |
||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | President | |||
EXPRESS SCRIPTS SENIOR CARE, INC. EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. |
||||
By: | /s/ Xxxxxx Xxx | |||
Name: | Xxxxxx Xxx | |||
Title: | President | |||
EXPRESS SCRIPTS CANADA HOLDING, LLC |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President | |||
21
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
CREDIT SUISSE SECURITIES (USA) LLC | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: | Xxxxxxx Xxxxxxx | |||||
Title: | Managing Director |
22
CITIGROUP GLOBAL MARKETS INC. | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
Name: | Xxxxx X. Xxxxxxxxx | |||||
Title: | Managing Director |
23
RBS SECURITIES INC.
By: | /s/ Xxxxx Xxxxxxxxxx | |||||
Name: | Xxxxx Xxxxxxxxxx | |||||
Title: | Managing Director |
24
SCHEDULE A
Principal | ||||
Amount of | ||||
3.125% Senior | ||||
Underwriter | Notes due 2016 | |||
Credit Suisse Securities (USA) LLC |
$ | 225,000,000 | ||
Citigroup Global Markets Inc. |
225,000,000 | |||
RBS Securities Inc. |
225,000,000 | |||
Credit Agricole Securities (USA) Inc. |
85,715,000 | |||
Deutsche Bank Securities Inc. |
85,715,000 | |||
X.X. Xxxxxx Securities LLC |
85,714,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
85,714,000 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
85,714,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
85,714,000 | |||
Xxxxx Fargo Securities, LLC |
85,714,000 | |||
Fifth Third Securities, Inc. |
37,500,000 | |||
Mitsubishi UFJ Securities (USA), Inc. |
37,500,000 | |||
PNC Capital Markets LLC |
37,500,000 | |||
Scotia Capital (USA) Inc. |
37,500,000 | |||
The Xxxxxxxx Capital Group, L.P. |
37,500,000 | |||
U.S. Bancorp Investments, Inc. |
37,500,000 | |||
Total |
$ | 1,500,000,000 | ||
SCHEDULE B
State or Other Jurisdiction | ||
Subsidiary Guarantors | of Incorporation | |
Airport Holdings, LLC
|
New Jersey | |
Xxxxxxx Drug, Inc.
|
Massachusetts | |
Care Continuum, Inc.
|
Kentucky | |
CFI of New Jersey, Inc.
|
New Jersey | |
Chesapeake Infusion, Inc.
|
Florida | |
ConnectYourCare Company, LLC
|
Delaware | |
ConnectYourCare, LLC
|
Maryland | |
CuraScript, Inc.
|
Delaware | |
CuraScript PBM Services, Inc.
|
Delaware | |
Diversified Pharmaceutical Services, Inc.
|
Minnesota | |
ESI Acquisition, Inc.
|
New York | |
ESI Claims, Inc.
|
Delaware | |
ESI Enterprises, LLC
|
Delaware | |
ESI-GP Holdings, Inc.
|
Delaware | |
ESI Mail Order Processing, Inc.
|
Delaware | |
ESI Mail Pharmacy Service, Inc.
|
Delaware | |
ESI Partnership
|
Delaware | |
ESI Realty, LLC
|
New Jersey | |
ESI Resources, Inc.
|
Minnesota | |
Express Scripts Canada Holding, Co.
|
Delaware | |
Express Scripts Canada Holding, LLC
|
Delaware | |
Express Scripts MSA, LLC
|
Florida | |
Express Scripts Pharmaceutical Procurement, LLC
|
Delaware | |
Express Scripts Sales Development Co.
|
Delaware | |
Express Scripts Senior Care, Inc.
|
Delaware | |
Express Scripts Senior Care Holdings, Inc.
|
Delaware | |
Express Scripts Specialty Distribution Services, Inc.
|
Delaware | |
Express Scripts Utilization Management Co.
|
Delaware | |
Express Scripts WC, Inc.
|
Florida | |
Freco, Inc.
|
Florida | |
Freedom Service Company, LLC
|
Florida | |
Healthbridge, Inc.
|
Delaware | |
Healthbridge Reimbursement and Product Support, Inc.
|
Massachusetts | |
iBiologic, Inc.
|
Delaware | |
IVTx, Inc.
|
Delaware | |
Lynnfield Compounding Center, Inc.
|
Florida | |
Lynnfield Drug, Inc.
|
Florida | |
Matrix GPO LLC
|
Indiana | |
Mooresville On-Site Pharmacy, LLC
|
Delaware | |
National Prescription Administrators, Inc.
|
New Jersey | |
Xxxxxxxxxxxxxxxxxx.xxx, Inc.
|
Florida | |
Priority Healthcare Corporation
|
Indiana | |
Priority Healthcare Corporation West
|
Nevada | |
Priority Healthcare Distribution, Inc.
|
Florida | |
Priority Healthcare Pharmacy, Inc.
|
Florida | |
Sinuspharmacy, Inc.
|
Florida | |
Specialty Infusion Pharmacy, Inc.
|
Florida | |
Spectracare, Inc.
|
Kentucky | |
Spectracare Health Care Ventures, Inc.
|
Kentucky |
State or Other Jurisdiction | ||
Subsidiary Guarantors | of Incorporation | |
Spectracare of Indiana
|
Indiana | |
Spectracare Infusion Pharmacy, Inc.
|
Kentucky | |
Value Health, Inc.
|
Delaware | |
XxxxXxxxxxxx.xxx, Inc.
|
Delaware |
SCHEDULE C
1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) | |
“General Use Issuer Free Writing Prospectus” includes each of the following documents: |
1. | Final term sheet, dated April 27, 2011 for the 3.125% Senior Notes due 2016. |
2. | Other Information Included in the General Disclosure Package | |
The following information is also included in the General Disclosure Package: | ||
None |