Exhibit 1.1
Hospira, Inc.
$300,000,000 4.95% Notes Due 2009
$ 400,000,000 5.90% Notes Due 2014
PURCHASE AGREEMENT
June 7, 2004
June 7, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
ABN AMRO Incorporated
Citigroup Global Markets Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Hospira, Inc., a Delaware corporation (the "COMPANY"), proposes to issue
and sell to the several purchasers named in Schedule I hereto (the "INITIAL
PURCHASERS") pursuant to this Purchase Agreement (this "Agreement") (i)
$300,000,000 principal amount of its 4.95% Notes Due 2009 (the "4.95% NOTES")
and (ii) $400,000,000 principal amount of its 5.90% Notes Due 2014 (the "5.90%
NOTES," and together with the 4.95% Notes, the "SECURITIES"). The Securities
will be issued pursuant to the provisions of an Indenture dated as of June 14,
2004 (the "BASE INDENTURE") between the Company and LaSalle Bank National
Association, as Trustee (the "TRUSTEE"), as supplemented by a First Supplemental
Indenture dated June 14, 2004 (the "SUPPLEMENTAL INDENTURE" together with the
Base Indenture, the "INDENTURE") between the Company and the Trustee.
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("REGULATION S") and to institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will prepare
a final offering memorandum (the "FINAL MEMORANDUM" and, with the Preliminary
Memorandum, each a "MEMORANDUM") including or incorporating by reference a
description of the terms of the Securities, the terms of the offering and a
description of the Company. As used herein, the term "Memorandum" shall include
in each case the documents incorporated by reference therein. The terms
"SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference in
the Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum with the
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Securities and Exchange Commission (the "COMMISSION") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in either Memorandum
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) the Preliminary Memorandum (other than
pricing-related information) does not contain and the Final Memorandum,
in the form used by the Initial Purchasers to confirm sales and on the
Closing Date (as defined in Section 4), will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in either Memorandum based upon information relating to any
Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through you expressly for use therein.
(b) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in each Memorandum and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(c) Each "significant subsidiary" of the Company (as such term
is defined in Rule 1-02(w) of Regulation S-X promulgated under the
Securities Act) has been duly incorporated or formed, is validly existing
as a corporation or limited liability company in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power
and authority, corporate or other, to own its property and to conduct its
business as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock or membership interests of each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the Company, free
and clear of all liens, encumbrances or claims.
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(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Company has an authorized capitalization as set forth
in the Memorandum, and all issued shares of common stock of the Company
outstanding on the date hereof have been duly authorized and are validly
issued, fully paid and non-assessable.
(f) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity, and will be entitled
to the benefits of the Indenture pursuant to which such Securities are to
be issued and the Registration Rights Agreement, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement
may be limited under applicable law.
(g) Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity
and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Registration Rights Agreement and the Securities will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by Federal and
state securities laws with respect to the Company's obligations under the
Registration Rights Agreement.
(i) Except as set forth in each Memorandum, there has not
occurred any material adverse change in the condition, financial or
otherwise, or in the
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earnings, business, properties or operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"), or any
development which would reasonably be expected to have a Material Adverse
Effect, from that set forth in the Preliminary Memorandum; except as
disclosed in the Preliminary Memorandum, neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included in the Preliminary Memorandum any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which would reasonably
be expected to have a Material Adverse Effect; and, except as set forth
in each Memorandum, since the date as of which information is given in
the Preliminary Memorandum, there has not been any material change in the
consolidated capital stock or any material increase in the consolidated
long-term debt of the Company and its subsidiaries.
(j) There are no legal or governmental proceedings or
investigations pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is subject
(including, without limitation, any proceedings before the United States
Food and Drug Administration or comparable, state, local or foreign
governmental bodies or any investigations related to Medicare
reimbursement), other than proceedings accurately described in all
material respects in each Memorandum and proceedings that would not
reasonably be expected to have a Material Adverse Effect, or a material
adverse effect on the power or ability of the Company to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Securities or to consummate the transactions
contemplated by the Final Memorandum.
(k) The Company and its subsidiaries (i) are in compliance with
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, individually or in the
aggregate, have a Material Adverse Effect.
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(m) Except as noted therein, the consolidated financial
statements, and the related notes thereto, included in each Memorandum
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
their operations and changes in their consolidated cash flows for the
periods specified; and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; and the pro forma financial
information, and the related notes thereto, included in each Memorandum
fairly present in all material respects the information contained therein
and have been prepared on a reasonable basis using reasonable assumptions
and on a basis consistent with the segment accounting principles and
policies of the Company reflected in such financial statements.
(n) The Company and its subsidiaries (i) make and keep accurate
books and records in all material respects and (ii) maintain internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's authorization,
(B) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any difference.
(o) The Company has established, maintains and will maintain
disclosure controls and procedures (as defined as Rule 13a-14 of the
Exchange Act) which are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported in
accordance with the Exchange Act and the rules and regulations
thereunder. The Company has carried out and will carry out evaluations,
under the supervision and with the participation of the Company's
management, of the effectiveness of the design and operation of the
Company's disclosure controls and procedures in accordance with Rule
13a-15 of the Exchange Act.
(p) The Company has good and marketable title to all assets
owned by it, 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 it.
(q) Except as set forth in each Memorandum, 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, would individually or in the aggregate, have a Material Adverse
Effect.
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(r) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will not be required to register as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(s) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the
Company has directly, or through any agent (other than the Initial
Purchasers), (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the
Securities Act of the Securities or (ii) offered, solicited offers to buy
or sold the Securities by any form of general solicitation or general
advertising (as those terms are used in Rule 502(c) of Regulation D under
the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(t) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) has engaged or
will engage in any directed selling efforts (within the meaning of Rule
902(b) of Regulation S) with respect to the Securities and the Company
and its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers) have complied and will comply with the
offering restrictions requirement of Regulation S with respect to the
offering of the Securities outside of the United States, except no
representation, warranty or agreement is made by the Company in this
paragraph with respect to the Initial Purchasers.
(u) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner
contemplated by this Agreement to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act
of 1939, as amended.
(v) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(w) The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the
Securities except for this Agreement and the Registration Rights
Agreement.
(x) The Company and, to the knowledge of the Company, its
affiliates have not taken and will not take, directly or indirectly, any
action designed to cause, or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Securities.
(y) The Company or, to the knowledge of the Company, any other
person associated with or acting on behalf of the Company including,
without
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limitation, any director, officer, agent or employee of the Company or
its subsidiaries, has not, directly or indirectly, while acting on behalf
of the Company or its subsidiaries (i) used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to foreign
or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any other unlawful payment.
(z) The operations of the Company and its subsidiaries are and
have been conducted at all times in material compliance with applicable
financial record keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar 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) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. 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 of the
Securities, 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.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company, at a purchase price of (i) 99.347% of the principal amount of
the 4.95% Notes and (ii) 99.081% of the principal amount of the 5.90% Notes, in
the respective principal amounts of the Securities set forth opposite its name
in Schedule I hereto.
3. TERMS OF OFFERING. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. PAYMENT AND DELIVERY. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at
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10:00 a.m., New York City time, on June 14, 2004, or at such other time on the
same or such other date, not later than June 14, 2004, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the purchase price therefor plus accrued interest, if any, to the
date of payment and delivery.
5. CONDITIONS TO THE INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development which would reasonably be expected to have a change,
in the condition, financial or otherwise, or in the earnings,
business, properties or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Preliminary Memorandum (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company who has specific knowledge of the Company's
financial matters, and is reasonably satisfactory to the Initial
Purchasers, to the effect set forth in Section 5(a)(i) and (ii) and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
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The officer signing and delivering such certificate may rely upon
his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx, Xxxxx, Xxxx & Maw LLP, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A
hereto.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx X. Xxxxx, General Counsel of the Company (or
such other person who shall be General Counsel of the Company on the
Closing Date), dated the Closing Date, to the effect set forth in Exhibit
B hereto.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Initial Purchasers, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Initial Purchasers may reasonably
request, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(f) The Initial Purchasers shall have received on each of the
date hereof and the Closing Date a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Initial Purchasers, from Deloitte & Touche LLP and Ernst & Young LLP,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Final Memorandum; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
The Company will furnish the Initial Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Initial Purchasers
reasonably request. The Initial Purchasers may in their sole discretion waive
compliance with any conditions to the obligations of the Initial Purchasers
hereunder.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Initial Purchasers contained in this Agreement, the Company
covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 6(c),
as many copies of the Final Memorandum and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object in writing.
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(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Final Memorandum in
order to make the statements therein, in the light of the circumstances
when the Final Memorandum is delivered to a purchaser, not misleading, or
if, in the reasonable opinion of counsel for the Initial Purchasers, it
is necessary to amend or supplement the Final Memorandum to comply with
applicable law, forthwith to prepare and furnish, at its own expense, to
the Initial Purchasers, either amendments or supplements to the Final
Memorandum so that the statements in the Final Memorandum as so amended
or supplemented will not, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, be misleading or so that
the Final Memorandum, as amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualifications, if any, in effect
so long as required for the initial resale of the Securities by the
Initial Purchasers; provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction or subject itself to taxation in a
jurisdiction in which it is not otherwise subject to tax.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all reasonable expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of each
Memorandum and all amendments and supplements thereto, including all
printing costs associated therewith, and the delivering of copies thereof
to the Initial Purchasers, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the
Securities to the Initial Purchasers, including any transfer or other
taxes payable thereon, (iii) the reasonable cost of printing or producing
any Blue Sky or legal investment memorandum in connection with the offer
and sale of the Securities under state securities laws and all reasonable
expenses in connection with the qualification of the Securities for offer
and sale under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Initial Purchasers in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum, (iv)
any fees charged by rating agencies for the rating of the Securities, (v)
the fees and expenses, if any, incurred in connection with the admission
of the Securities for trading in PORTAL or any appropriate market system,
(vi) the costs and charges of the Trustee and any transfer agent,
registrar or depositary, (vii) the cost of the preparation, issuance and
delivery of the Securities, (viii) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Securities,
including,
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without limitation, reasonable expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants
(other than the Initial Purchasers) engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and
any such consultants, and (ix) all other cost and expenses incident to
the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8, and the last
paragraph of Section 10, the Initial Purchasers will pay all of their
costs and expenses, including fees and disbursements of their counsel,
transfer taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon written
request, to any seller of such Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you in writing, to use commercially
reasonable efforts to permit the Securities to be designated PORTAL
securities in accordance with the rules and regulations adopted by the
National Association of Securities Dealers, Inc. relating to trading in
the PORTAL Market.
(j) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Securities, and the Company and its Affiliates and
each person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions requirement of
Regulation S.
(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, the Company will not,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on
behalf of the Initial Purchasers, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially
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similar to the Securities (other than the sale of the Securities under
this Agreement).
(l) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them.
(m) Not to take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Securities
contemplated hereby.
(n) The Company shall use the proceeds from the sale of the
Securities in the manner described in the Final Memorandum.
(o) During the period of two years hereafter, the Company will
furnish to the Initial Purchasers, as soon as available, a copy of each
of the reports, notices or communications sent to securityholders, if not
available on the Commission's Electronic Data Gathering, Analysis and
Retrieval system.
7. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER.
(a) Each Initial Purchaser, severally and not jointly,
represents and warrants that such Initial Purchaser is a qualified
institutional buyer as defined in Rule 144A under the Securities Act (a
"QIB"). Each Initial Purchaser, severally and not jointly, agrees with
the Company that (i) it will not solicit offers for, or offer or sell,
the Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in
any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it will solicit offers for the Securities
only from, and will offer such Securities only to, persons that it
reasonably believes to be (A) in the case of offers inside the United
States, (1) QIBs or (2) other institutional accredited investors (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of
the Securities, deliver to such Initial Purchaser a letter containing the
representations and agreements set forth in Appendix A to the Memorandum
and (B) in the case of offers outside the United States, to persons other
than U.S. persons ("FOREIGN PURCHASERS," which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate
or trust)) in reliance upon Regulation S under the Securities Act that,
in each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under the
caption "Transfer Restrictions."
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales outside
the United States that:
13
(i) such Initial Purchaser understands that no action
has been or will be taken in any jurisdiction by the Company that
would permit a public offering of the Securities, or possession or
distribution of either Memorandum or any other offering or
publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers Securities or has in its
possession or distributes either Memorandum or any such other
material, in all cases at its own expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A or Regulation S under the
Securities Act or pursuant to another exemption from the
registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities
and will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date,
only in accordance with Rule 903 of Regulation S or as otherwise
permitted in Section 7(a); accordingly, neither such Initial
Purchaser, its Affiliates nor any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the
Securities, and any such Initial Purchaser, its Affiliates and any
such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold
and, prior to the date six months after the Closing Date, will not
offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (B)
has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") with respect
to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (C) will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the
issue or sale of the Securities in circumstances in which Section
21(1) of the FSMA does not apply to the Company;
14
(vi) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) not otherwise defined herein have the meanings
given to them by Regulation S.
8. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, each person, if any, who controls any Initial
Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of any Initial
Purchaser within the meaning of Rule 405 under the Securities Act, from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in either Memorandum (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein
a material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, including
any losses, claims, damages and liabilities caused by the Company's
failure to perform its obligations under Section 6(c) of this Agreement,
except insofar as such losses, claims, damages or liabilities are caused
by (i) any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through you
expressly for use therein or (ii) the failure by such Initial Purchaser
to deliver a supplement or amendment to either Memorandum which would
have corrected such untrue statement or omission or alleged untrue
statement or omission.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers
and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to such
Initial Purchaser, but only with
15
reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly
for use in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case
of parties indemnified pursuant to Section 8(a), and by the Company, in
the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding 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
claims that are the subject matter of such proceeding.
16
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchasers on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
8(d)(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 8(d)(i) above but also the relative fault of the Company on the
one hand and of the Initial Purchasers on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the total
discounts and commissions received by the Initial Purchasers, in each
case as set forth in the Final Memorandum, bear to the aggregate offering
price of the Securities. The relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand 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 by the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 8 are several in proportion to the respective
principal amount of Securities they have purchased hereunder, and not
joint.
(e) The Company and the Initial Purchasers agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in Section 8(d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Initial Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities resold by it
in the initial placement of such Securities were offered to investors
exceeds the amount of any damages that such Initial Purchaser 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
17
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Initial Purchaser, any
person controlling any Initial Purchaser or any affiliate of any Initial
Purchaser or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment
for any of the Securities.
(g) The Company and the Initial Purchasers agree that the only
information furnished by the Initial Purchasers to the Company expressly
for use in either Memorandum is (i) the names of the Initial Purchasers
on the cover page of each Memorandum, (ii) the first paragraph of text
under the caption "Plan of Distribution" in each Memorandum, concerning
the names of the Initial Purchasers and the principal amounts of the
Securities purchased, (iii) the last sentence of the third paragraph of
text under the caption "Plan of Distribution" in each Memorandum,
concerning the terms of the offering by the Initial Purchasers, and (iv)
the sixth paragraph of text under the caption "Plan of Distribution" in
each Memorandum, concerning short sales, stabilizing transactions and
purchases to cover positions created by short sales by Initial
Purchasers.
9. TERMINATION. The Initial Purchasers may terminate this Agreement
by giving notice to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market or
other relevant exchanges, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over the counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets, currency exchange rates or controls or any calamity
or crisis that, in your judgment, is material and adverse and which,
individually or together with any other event specified in this clause (v),
makes it, in your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the Securities on the terms and in the manner
contemplated in the Final Memorandum.
10. EFFECTIVENESS; DEFAULTING INITIAL PURCHASERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such
18
date, and the aggregate principal amount of Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of Securities set forth opposite the names of all such non-defaulting
Initial Purchasers, or in such other proportions as you may specify, to purchase
the Securities which such defaulting Initial Purchaser or Initial Purchasers
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Initial Purchaser has agreed
to purchase pursuant to this Agreement be increased pursuant to this Section 10
by an amount in excess of one-ninth of such principal amount of Securities
without the written consent of such Initial Purchaser. If, on the Closing Date
any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase
Securities which it or they have agreed to purchase hereunder on such date and
the aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or of the Company. In any such case either you
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Final Memorandum or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser
under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. NOTICE. All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone if subsequently confirmed in
writing, (a) if to the Initial Purchasers, c/o Morgan Xxxxxxx & Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Fixed Income Desk and (b) if
to the Company, to 000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxxx, XX 00000, Attention:
Treasurer.
12. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
19
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. MISCELLANEOUS. This Agreement has been and is made for the benefit
of the Initial Purchasers and the Company and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Initial Purchasers or the Company, and directors and
officers of the Company, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser of
Shares from any Initial Purchaser merely because of such purchase.
20
Very truly yours,
Hospira, Inc.
By:/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President, Finance and
Chief Financial Officer
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
ABN AMRO Incorporated
Citigroup Global Markets Inc.
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxxxx XXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
By: ABN AMRO Incorporated
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Director
21
By: Citigroup Global Markets Inc.
By: /s/ Xxxxx Xxx
--------------------------------
Name: Darin Bay
Title: Vice President
22
SCHEDULE I
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF 4.95% NOTES TO OF 5.90% NOTES TO
INITIAL PURCHASER BE PURCHASED BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated......................... $ 80,000,000 $ 106,667,000
ABN AMRO Incorporated..................................... 80,000,000 106,667,000
Citigroup Global Market Inc............................... 80,000,000 106,667,000
Banc of America Securities LLC............................ 12,000,000 16,000,000
Banc One Capital Markets, Inc............................. 12,000,000 16,000,000
BNP Paribas Securities Corp. ............................. 6,000,000 8,000,000
Commerzbank Capital Markets Corp.......................... 6,000,000 8,000,000
Xxxxxx Xxxxxxx Corp....................................... 6,000,000 8,000,000
Tokyo-Mitsubishi International plc........................ 6,000,000 8,000,000
SunTrust Capital Markets, Inc............................. 6,000,000 8,000,000
Wachovia Capital Markets, LLC............................. 6,000,000 8,000,000
Total:....................................... $ 300,000,000 $ 400,000,000
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of Xxxxx, Xxxxx, Xxxx & Maw LLP, outside counsel for the
Company, to be delivered pursuant to Section 5(c) of the
Purchase Agreement,
shall be to the effect that:
A. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum.
B. Each U.S. subsidiary of the Company has been duly incorporated or
formed, is validly existing as a corporation or limited liability company in
good standing under the laws of the jurisdiction of its incorporation or
formation, has the power and authority, corporate or other, to own its property
and to conduct its business as described in the Final Memorandum; all of the
issued shares of capital stock or membership interests of each U.S. subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable, and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims.
C. The
Purchase Agreement has been duly authorized, executed and
delivered by the Company.
D. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Final Memorandum and the
shares of common stock of the Company outstanding on the Closing Date have been
duly authorized and are validly issued, fully paid and non-assessable.
E. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the
Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law..
F. Each of the Indenture and the Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of
A-1
equity and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law.
G. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the
Purchase Agreement, the Indenture,
the Registration Rights Agreement and the Securities will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or, to such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to such counsel's knowledge,
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
the
Purchase Agreement, the Indenture, the Registration Rights Agreement and the
Securities, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Securities and
by Federal and state securities laws with respect to the Company's obligations
under the Registration Rights Agreement.
H. Such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject other than proceedings summarized in the Final
Memorandum and proceedings which such counsel believes are not likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its obligations under the
Purchase Agreement, the Indenture, the Registration Rights Agreement or the
Securities or to consummate the transactions contemplated by the Final
Memorandum.
I. The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Memorandum, will not be required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
X. The statements in the Final Memorandum under the captions
"Description of Notes" and "Transfer Restrictions" insofar as such statements
constitute summaries of the legal matters or documents referred to therein,
fairly summarize the matters referred to therein.
K. The statements in the Final Memorandum under the caption "Certain
United States Federal Income Tax Considerations," insofar as such statements
constitute a summary of the United States federal tax laws referred to therein,
are accurate and fairly summarize in all material respects the United States
federal tax laws referred to therein.
X. Xxxx counsel has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as to which
such counsel need not
A-2
express any belief) the Final Memorandum when issued contained, or as of the
date such opinion is delivered contains, any untrue statement of a material fact
or omitted or omits 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.
M. Based upon the representations, warranties and agreements of the
Company and of the Initial Purchasers in the
Purchase Agreement, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers under the
Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Final Memorandum to register the
Securities under the Securities Act of 1933 or to qualify the Indenture under
the Trust Indenture Act of 1939, it being understood that no opinion is
expressed as to any subsequent resale of the Securities.
With respect to paragraph L above, counsel may state that its opinion and
belief are based upon his or her participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and review and discussion
of the contents thereof and review of the documents incorporated by reference
therein, but are without independent check or verification except as specified.
A-3
EXHIBIT B
OPINION OF COUNSEL FOR THE COMPANY
The opinion of Xxxxx X. Xxxxx, General Counsel of the Company (or such
other person who shall be General Counsel of the Company on the Closing Date),
to be delivered pursuant to Section 5(d) of the Purchase Agreement, shall be to
the effect that:
A. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
B. Each significant non-U.S. subsidiary (as defined in Regulation S-X
of the Rule and Regulations promulgated under the Securities Act) of the Company
has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Final Memorandum and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable,
and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims.
C. Such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject other than proceedings summarized in all material
respects in the Final Memorandum and proceedings which such counsel believes are
not likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated by the Final Memorandum.
B-1
