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EXECUTION COPY
IMED CORPORATION
IMED INTERNATIONAL TRADING CORP.
$200,000,000
9 3/4% Series A Senior Subordinated Notes due 2006
Purchase Agreement
November 19, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BT SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
PARIBAS CORPORATION
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IMED CORPORATION
IMED INTERNATIONAL TRADING CORP.
$200,000,000
9 3/4% Series A Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
November 19, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BT SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
PARIBAS CORPORATION
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IMED Corporation, a Delaware corporation ("IMED"), proposes to issue and
sell to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ"), BT
Securities Corporation, Bear, Xxxxxxx & Co. Inc. and Paribas Corporation (each,
an "Initial Purchaser" and collectively the "Initial Purchasers") an aggregate
of $200,000,000 in principal amount of its 9 3/4% Series A Senior Subordinated
Notes due 2006 (the "Series A Notes"), subject to the terms and conditions set
forth herein. The Series A Notes are to be issued pursuant to the provisions of
an indenture (the "Indenture") to be dated as of November 26, 1996 among IMED,
the Initial Guarantor (as defined below) and United States Trust Company of New
York, as trustee (the "Trustee"). The Series A Notes and the Series B Notes (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "Notes." Prior to the Merger (as defined below), the Notes will be
guaranteed on a senior subordinated basis by IMED International Trading Corp.
(the "Initial Guarantor"), being IMED's only domestic subsidiary (other than
IMED Merger Sub (as defined below)) as of the Closing Date (as defined below).
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
The Series A Notes are being issued and sold in connection with an
Agreement and Plan of Merger (the "Merger Agreement") dated as of August 23,
1996, by and among IMED, IMED Merger Sub, Inc. ("IMED Merger Sub"), IVAC
Holdings, Inc. ("IVAC Holdings"), IVAC Medical Systems, Inc. ("IVAC Medical
Systems") and certain stockholders of IVAC Holdings. Pursuant to the Merger
Agreement, IMED Merger Sub will be merged with and into IVAC Holdings (the
"Initial Merger") and IVAC Holdings will continue as the surviving corporation
of the Initial Merger. Immediately following the Initial Merger, IMED will be
merged with and into IVAC Holdings and IVAC Medical Systems will be merged with
and into IVAC Holdings (the "Secondary Mergers" and together with the Initial
Merger, the "Merger") and IVAC Holdings will continue as the surviving
corporation of the Second Merger. As used herein, the "Surviving Company" shall
refer to IVAC Holdings after the Merger.
Immediately subsequent to the Merger, the Surviving Company will execute
and deliver (i) an assumption agreement pursuant to which the Surviving Company
will assume all of the obligations of IMED under the Series A Notes and the
Indenture (the "Note Assumption"), (ii) an assumption agreement pursuant to
which the Surviving Company will assume all of the obligations of IMED under the
Registration Rights Agreement (as defined herein) (the "Registration Rights
Assumption") and (iii) an assumption agreement pursuant to which the Surviving
Company will assume the obligations of IMED hereunder (the "Purchase
Assumption"). In addition, immediately subsequent to the Merger, IVAC Overseas
Holdings, Inc. (the "Second Guarantor") will execute and deliver (i) a
supplemental indenture (the "Supplemental Indenture") pursuant to which the
Second Guarantor will guarantee the Notes on a senior subordinated basis, (ii)
the Registration Rights Assumption pursuant to which the Second Guarantor will
become a party to the Registration Rights Agreement and (iii) the Purchase
Assumption pursuant to which the Second Guarantor will become a party hereunder.
As used herein, the "Company" shall refer to IMED prior to the Merger and to the
Surviving Company following the Merger, the "Guaranteeing Subsidiaries" shall
refer to the Initial Guarantor and the Second Guarantor and the "Subsidiary
Guarantees" shall refer to the guarantees of the Notes by either or both of the
Guaranteeing Subsidiaries.
IMED will use (i) the proceeds from the sale to the Initial Purchasers of
the Series A Notes, (ii) borrowings under a credit agreement (the "New Credit
Facility") by and among IMED, Advanced Medical, Inc., IMED's corporate parent
("Advanced Medical"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Bankers Trust Company, Banque Paribas and the other lenders party thereto, (iii)
the proceeds of a capital contribution (the "Capital Contribution") of
approximately $20.0 million from Advanced Medical and (iv) existing cash
balances to: (a) pay the aggregate cash consideration to be paid in connection
with the Initial Merger, (b) repay the indebtedness outstanding under the
existing revolving credit facility, dated as of April 2, 1990 (as amended on
August 12, 1994), between IMED and General Electric Capital Corporation (the
"IMED Credit Facility"), (c) repay the indebtedness outstanding under the
existing revolving credit facility, dated as of March 29, 1996, by and among
IVAC Holdings, IVAC Medical Systems, Chemical Bank and the lenders party thereto
(the "IVAC Credit Facility"), (d) repay the 13.2% Junior Subordinated Notes due
2006 of IVAC Holdings (the "Junior Subordinated Notes"), (e) repurchase the
Senior Notes due 2002 of IVAC Medical Systems (the "Existing Senior Notes") in
connection with the tender offer and consent solicitation pursuant to the Offer
to Purchase and Consent Solicitation Statement of IVAC Medical Systems, dated as
of October 16, 1996 as amended and supplemented (the "Tender Offer and Consent
Solicitation") and (f) pay transaction fees and expenses.
1. Offering Memorandum. The Series A Notes will be offered and sold to the
Initial Purchasers pursuant to an exemption from the registration requirements
under the Securities Act of 1933, as amended (the "Act"). IMED has prepared a
preliminary offering memorandum, dated October 31, 1996 (the "Preliminary
Offering Memorandum") and a final offering memorandum, dated November 19, 1996
(the "Offering Memorandum"), relating to the Series A Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A Notes
(and all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING
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ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
THE SECURITIES ACT, (d) TO AN INSTITUTIONAL `ACCREDITED INVESTOR' (AS
DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF THE SECURITIES ACT (AN
`INSTITUTIONAL ACCREDITED INVESTOR') THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES
LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER WILL BE REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
2. Agreements to Sell and Purchase. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, IMED agrees to issue and sell to the Initial
Purchasers, and the Initial Purchasers agree to purchase from IMED, the
principal amounts of Series A Notes set forth opposite the name of such Initial
Purchaser on Schedule A hereto at a purchase price equal to 97% of the principal
amount thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised IMED that the
Initial Purchasers will make offers (the "Exempt Resales") of the Series A Notes
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) a limited number of other institutional
"accredited investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the
Act, that make certain representations and agreements to the Company (each, an
"Accredited Institution") (such persons specified in clauses (i) and (ii) being
referred to herein as the "Eligible Purchasers"). The Initial Purchasers will
offer the Series A Notes to Eligible Purchasers initially at a price equal to
100% of the principal amount thereof. Such price may be changed at any time
without notice.
Holders (including subsequent transferees) of the Series A Notes will have
the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the
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Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Act (the "Exchange
Offer Registration Statement") relating to the Company's 9 3/4% Series B Senior
Subordinated Notes due 2006 (the "Series B Notes"), to be offered in exchange
for the Series A Notes (such offer to exchange being referred to as the
"Exchange Offer") and (ii) a shelf registration statement pursuant to Rule 415
under the Act (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Series A Notes and to use its best
efforts to cause such Registration Statements to be declared effective and
consummate the Exchange Offer. This Agreement, the Indenture, the Notes, the
Subsidiary Guarantees, the Registration Rights Agreement, the Purchase
Assumption, the Note Assumption, the Supplemental Indenture and the Registration
Rights Assumption are hereinafter sometimes referred to collectively as the
"Operative Documents."
4. Delivery and Payment. (a) Delivery of, and payment of the Purchase
Price for, the Series A Notes shall be made at the offices of Xxxxxx Xxxxxx
Butowsky Xxxxxxx Xxxxxx & Xxxx at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m. New York City time, on November 26, 1996 or
at such other time as shall be agreed upon by the Initial Purchasers and IMED.
The time and date of such delivery and the payment are herein called the
"Closing Date."
(b) One or more of the Series A Notes in definitive form, registered in
the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"),
having an aggregate principal amount corresponding to the aggregate principal
amount of the Series A Notes (collectively, the "Master Note"), shall be
delivered by IMED to the Initial Purchasers (or as the Initial Purchasers
direct) in each case with any transfer taxes thereon duly paid by IMED against
payment by the Initial Purchasers of the Purchase Price thereof by wire transfer
in same day funds to the order of IMED. The Master Note shall be made available
to the Initial Purchasers for inspection not later than 9:30 a.m., New York City
time, on the business day immediately preceding the Closing Date.
5. Agreements of the Company and the Guaranteeing Subsidiaries. Each of
the Company and the Guaranteeing Subsidiaries hereby agrees with the Initial
Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any Series A Notes
for offering or sale in any jurisdiction designated by the Initial
Purchasers pursuant to Section 5(e) hereof, or the initiation of any
proceeding by any state securities commission or any other regulatory
authority and (ii) of the happening of any event that makes any statement
of a material fact made in the Preliminary Offering Memorandum or the
Offering Memorandum untrue or that requires the making of any additions to
or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The Company shall
use its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Series A Notes under any
state securities or Blue Sky laws and, if at any time any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption of any Series A Notes under any state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time.
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(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company, without charge as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request. Subject to the Initial Purchasers' compliance with
applicable state and federal securities laws, the Company consents to the
use of the Preliminary Offering Memorandum and the Offering Memorandum,
and any amendments and supplements thereto required pursuant hereto, by
the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering Memorandum
or the Offering Memorandum during the period set forth in Section 5(j),
unless the Initial Purchasers shall previously have been advised thereof
and shall not have objected thereto within seven business days of being
furnished a copy thereof (or such shorter period as is reasonably required
to comply with Section 5(d)). The Company shall promptly prepare upon the
Initial Purchasers' request, any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum that the
Initial Purchasers believe necessary or advisable in connection with
Exempt Resales.
(d) If, after the date hereof and during the period set forth in
Section 5(j), any event shall occur as a result of which, in the judgment
of the Company or in the reasonable opinion of counsel to the Initial
Purchasers, it becomes necessary to amend or supplement the Preliminary
Offering Memorandum or Offering Memorandum in order to make the statements
therein, in the light of the circumstances when such Preliminary Offering
Memorandum or Offering Memorandum is delivered to an Eligible Purchaser,
not misleading, or if it is necessary to amend or supplement the
Preliminary Offering Memorandum or Offering Memorandum to comply with any
law, statute, rule or regulation, to forthwith prepare an appropriate
amendment or supplement to such Preliminary Offering Memorandum or
Offering Memorandum so that the statements therein, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Preliminary Offering Memorandum
or Offering Memorandum will comply with applicable law.
(e) To cooperate with the Initial Purchasers and the counsel to the
Initial Purchasers in connection with the registration or qualification of
the Series A Notes under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may reasonably request in writing
at least five business days prior to any proposed transfer and to continue
such qualification in effect so long as required for the Exempt Resales;
provided, however, that the Company shall not be required in connection
therewith to register or qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action
that would subject it to general consent to service of process or taxation
other than as to matters and transactions relating to the Preliminary
Offering Memorandum, the Offering Memorandum or Exempt Resales, in any
jurisdiction in which it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated to
pay and be responsible for all costs, expenses, fees and taxes in
connection with or incident to (i) the preparation, printing, processing,
duplicating, filing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum (including, without limitation,
financial statements required pursuant hereto), and all amendments or
supplements thereto required pursuant hereto, (ii) the preparation,
printing, processing, execution, distribution and delivery of this
Agreement, the other Operative Documents, all preliminary and final Blue
Sky memorandum printed,
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distributed and delivered in connection herewith and with the Exempt
Resales, (iii) the issuance, transfer and delivery of the Notes and the
Subsidiary Guarantees to the Initial Purchasers, (iv) the registration or
qualification of the Notes and the Subsidiary Guarantees for offer and
sale under the securities or Blue Sky laws of the jurisdictions referred
to in Section 5(e) (including, in each case, the fees and disbursements of
counsel to the Initial Purchasers relating to such registration or
qualification and memoranda relating thereto), (v) furnishing such copies
of the Preliminary Offering Memorandum and the Offering Memorandum, and
all amendments and supplements thereto, as may be requested for use in
connection with Exempt Resales, (vi) the preparation of certificates for
the Notes (including, without limitation, printing and engraving thereof),
(vii) the fees, disbursements and expenses of the Company's counsel and
accountants, (viii) all expenses and listing fees in connection with the
application for quotation of the Series A Notes in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and
expenses of counsel to the Company) of the Company in connection with the
approval of the Notes by DTC for "book-entry" transfer, (x) the rating of
the Notes by investment rating agencies, (xi) the fees and expenses of the
Trustee and the Trustee's counsel in connection with the Indenture and the
Notes and (xii) the performance by the Company of its other obligations
under this Agreement and the other Operative Documents.
(g) To use the proceeds from the sale of the Series A Notes in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(h) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(i) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Series A Notes in a manner
that would require the registration under the Act of the sale to the
Initial Purchasers, the QIBs or the Accredited Investors of the Series A
Notes.
(j) For so long as any of the Notes remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to
make available to any holder of Series A Notes in connection with any sale
thereof and any prospective purchaser of such Series A Notes from such
holder, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(k) To cause the Exchange Offer to be made in the appropriate form
to permit registered Series B Notes to be offered in exchange for the
Series A Notes and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(l) To comply with all of its agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representation letters of the Company to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer.
(m) To use its best efforts to effect the inclusion of the Series A
Notes in PORTAL and to obtain approval of the Notes by DTC for
"book-entry" transfer.
(n) During a period of five years following the Closing Date, to
deliver without charge to the Initial Purchasers promptly upon their
becoming available (i) all reports or other
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publicly available information that the Company shall mail or otherwise
make available to its stockholders and (ii) all reports, financial
statements and proxy or information statements filed by the Company or its
subsidiaries with the Commission or any national securities exchange and
such other publicly available information concerning the Company or its
subsidiaries, including without limitation, press releases, as the Initial
Purchaser may reasonably request.
(o) Not to, and to cause its affiliates not to, offer, sell,
contract to sell or grant any option to purchase or otherwise transfer or
dispose of any Notes or any other debt security issued by the Company or
any of its subsidiaries (other than a private loan, credit or financing
agreement with a bank or similar financing institution) or any security
convertible into or exchangeable or exercisable for any such debt
security, for a period of 120 days after the Closing Date, without the
Initial Purchasers' prior written consent, except for (i) sales or
transfers between affiliates of the Company and the Company or any of its
subsidiaries, (ii) the issue and exchange of Series B Notes for Series A
Notes in the Exchange Offer, (iii) the purchase of the Existing Senior
Notes in connection with the Tender Offer and Consent Solicitation and
(iv) the repayment of the indebtedness outstanding under the Junior
Subordinated Notes.
(p) During the period set forth in Section 5(j), to furnish to the
Initial Purchasers, as soon as they have been prepared by the Company a
copy of any consolidated financial statements of the Company for any
period subsequent to the period covered by the financial statements
appearing in the Offering Memorandum.
(q) As soon as practicable following the Merger, the Surviving
Company will take all actions and make all filings necessary to qualify as
a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification.
(r) To do and perform all things required to be done and performed
under this Agreement by it that are within its control prior to the
Closing Date and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Series A Notes that are
within its control.
6. Representations and Warranties of the Company and the Guaranteeing
Subsidiaries. As of the date hereof, each of the Company and the Guaranteeing
Subsidiaries represents and warrants to each of the Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
have been prepared in connection with the Exempt Resales. The Preliminary
Offering Memorandum and the Offering Memorandum do not, and any supplement
or amendment to them will not, contain 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 in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Preliminary Offering
Memorandum or the Offering Memorandum (or any supplement or amendment
thereto) made in reliance upon and in conformity with information relating
to the Initial Purchasers furnished to IMED in writing by the Initial
Purchasers expressly for use therein. IMED acknowledges for all purposes
under this Agreement that the statements set forth in the last paragraph
on the cover page and in the first and second sentences of the third
paragraph and the fourth sentence of the fourth paragraph under the
caption "Plan of Distribution" in the Offering Memorandum
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constitute the only written information furnished to IMED by the Initial
Purchasers expressly for use in the Preliminary Offering Memorandum and
the Offering Memorandum (or any amendment or supplement thereto). No stop
order preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued.
(b) When the Series A Notes are issued and delivered pursuant to
this Agreement, no Series A Note will be of the same class (within the
meaning of Rule 144A under the Act) as securities of IMED that are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated inter-dealer
quotation system.
(c) Immediately prior to the Initial Merger, the entities listed on
Schedule B hereto will be the only subsidiaries, direct or indirect, of
IMED. All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each such subsidiary has been duly and
validly authorized and issued, and all of the shares of capital stock of,
or other ownership interests in, each such subsidiary are owned, directly
or indirectly, by IMED. All such shares of capital stock are fully paid
and non-assessable and have not been issued in violation of any preemptive
or similar rights and are owned free and clear of any security interest,
mortgage, pledge, claim, lien, limitation on voting rights or encumbrance
(each, a "Lien"), except for Liens granted pursuant to the IMED Credit
Facility and the New Credit Facility. There are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interest in, any such subsidiary.
(d) After giving effect to the Merger, the entities listed on
Schedule C hereto will be the only subsidiaries, direct or indirect, of
the Surviving Company. After giving effect to the Merger, the Surviving
Company will own, directly or indirectly, all of the issued and
outstanding capital stock of, or other ownership interests in, each such
subsidiary and all of the issued and outstanding shares of capital stock
of, or other ownership interests in, each such subsidiary will have been
duly and validly authorized and issued all such shares of capital stock
will have been fully paid and non-assessable and have not been issued in
violation of any preemptive or similar rights and will be owned free and
clear of any Lien, except for Liens granted pursuant to the New Credit
Facility. There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any such
subsidiary.
(e) IMED and each of its subsidiaries is a duly organized and
validly existing corporation in good standing under the laws of its
jurisdiction of incorporation, has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as it is currently being conducted and as described in the
Offering Memorandum, and is duly qualified as a foreign corporation and is
in good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
singly or in the aggregate, have a Material Adverse Effect (as defined
below) on IMED. Immediately following the Merger, the Surviving Company
and each of its subsidiaries will be a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation, will have the corporate power and authority to own, lease
and operate its properties and to
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conduct its business as it is currently being conducted and as described
in the Offering Memorandum, and the subsidiaries of the Surviving Company
will be duly qualified and will be in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not
have a Material Adverse Effect on the Surviving Company. As used herein,
"Material Adverse Effect" shall mean, with respect to any Person, any
effect or group of related or unrelated effects that (i) would be
reasonably expected, individually or in the aggregate, to result in a
material adverse effect on the assets, properties, business, results of
operations, condition (financial or otherwise) or prospects of such Person
and its subsidiaries, taken as a whole or (ii) would interfere with,
adversely affect or question the validity of (A) the execution, delivery
and performance of any of the Operative Documents, the issuance of the
Notes and the Subsidiary Guarantees or the consummation of this Agreement,
(B) the performance by each Person and each of its subsidiaries of its
respective agreements and obligations under this Agreement or the
consummation of the transaction contemplated thereby or (C) the
consummation of the Merger.
(f) IMED has full corporate power and authority to execute, deliver
and perform its obligations under the Merger Agreement, the New Credit
Facility, this Agreement, the Indenture, the Registration Rights Agreement
and the other Operative Documents to which it is a party and to consummate
the transactions contemplated by the Merger Agreement, the New Credit
Facility this Agreement and the other Operative Documents to which it is a
party, and to issue, sell and deliver the Series A Notes pursuant to this
Agreement. IMED Merger Sub has full corporate power and authority to
execute, deliver and perform its obligations under the Merger Agreement.
The Initial Guarantor has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture,
the New Credit Facility, the Registration Rights Agreement and the other
Operative Documents to which it is a party and to consummate the
transactions contemplated by this Agreement and the other Operative
Documents to which it is a party, and to issue, sell and deliver its
Subsidiary Guarantee pursuant to this Agreement. The Merger Agreement has
been duly authorized and validly executed and delivered by IMED and IMED
Merger Sub and constitutes a valid and legally binding agreement of IMED
and IMED Merger Sub, enforceable against IMED and IMED Merger Sub in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) Immediately subsequent to the Initial Merger, IVAC Holdings will
have full corporate authority to execute, deliver and perform its
obligations under the Note Assumption, the Registration Rights Assumption,
the Purchase Assumption and to consummate the transactions contemplated by
the Note Assumption, the Registration Rights Assumption, the Purchase
Assumption and the Secondary Mergers. Immediately subsequent to the
Initial Merger, the Second Guarantor will have full corporate authority to
execute, deliver and perform its obligations under its Subsidiary
Guarantee, the Supplemental Indenture, the Registration Rights Assumption,
the Purchase Assumption and to consummate the transactions contemplated by
the Supplemental Indenture, the Registration Rights Assumption, the
Purchase Assumption. Upon consummation of the Secondary Mergers, IVAC
Medical Systems will be merged with and into IVAC Holdings, and IMED will
be merged with and into IVAC Holdings, with IVAC Holdings surviving the
Secondary Mergers.
9
(h) This Agreement has been duly authorized and validly executed and
delivered by IMED and the Initial Guarantor and constitutes a valid and
legally binding agreement of IMED and the Initial Guarantor, enforceable
against IMED and the Initial Guarantor in accordance with its terms
(assuming the due execution and delivery hereof by the Initial
Purchasers), except as (i) rights to indemnity and contribution hereunder
may be limited by applicable law, (ii) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (iii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) Immediately subsequent to the Merger, this Agreement and the
Purchase Assumption will be duly authorized by the Surviving Company and
the Second Guarantor and the Purchase Assumption will be validly executed
and delivered by the Surviving Company and the Second Guarantor. When the
Purchase Assumption is executed and delivered, this Agreement will be a
valid and legally binding agreement of the Surviving Company and each of
the Guaranteeing Subsidiaries, enforceable against the Surviving Company
and each of the Guaranteeing Subsidiaries in accordance with its terms,
except as (i) rights to indemnity and contribution hereunder may be
limited by applicable law, (ii) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (iii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Indenture has been duly authorized by IMED and the Initial
Guarantor and, on the Closing Date, will have been validly executed and
delivered by IMED and the Initial Guarantor and will conform to the
description thereof in the Offering Memorandum. When the Indenture has
been duly executed and delivered by IMED and the Initial Guarantor, the
Indenture will be a valid and legally binding agreement of IMED and the
Initial Guarantor, enforceable against IMED and the Initial Guarantor in
accordance with its terms (assuming the due execution and delivery of the
Indenture by the Trustee), except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(k) Immediately subsequent to the Merger, the Note Assumption will
be duly authorized and validly executed and delivered by the Surviving
Company and the Supplemental Indenture will be duly authorized and validly
executed and delivered. Immediately subsequent to the Merger, the
Indenture will be duly authorized by the Surviving Company and the Second
Guarantor and, when the Note Assumption and the Supplemental Indenture are
executed and delivered, the Indenture will be a valid and legally binding
agreement of the Surviving Company and each of the Guaranteeing
Subsidiaries, enforceable against the Surviving Company and each of the
Guaranteeing Subsidiaries in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(l) The Series A Notes have been duly authorized by IMED and, on the
Closing Date, will have been validly executed and delivered by IMED and
will conform to the description thereof in the Offering Memorandum. When
the Series A Notes are issued, authenticated and delivered in accordance
with the Indenture and paid for by the Initial Purchasers in accordance
with the terms of this Agreement, the Series A Notes will constitute valid
and legally binding obligations of IMED, enforceable against IMED in
accordance with
10
their terms, and will be entitled to the benefits of the Indenture
(assuming the due execution and delivery of the Indenture by the Trustee),
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(m) Immediately subsequent to the Merger, the Series A Notes will be
duly authorized by the Surviving Company. When the Note Assumption is
executed and delivered, the Series A Notes will be the valid and legally
binding obligations of the Surviving Company, enforceable against the
Surviving Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(n) Immediately subsequent to the Merger, the Series B Notes will be
duly authorized by the Surviving Company. When the Note Assumption is
executed and delivered and when the Series B Notes are issued and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be the valid and legally binding
obligations of the Surviving Company, enforceable against the Surviving
Company in accordance with their terms and entitled to the benefits of the
Indenture (assuming the due execution and delivery of the Indenture by the
Trustee), except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(o) The Subsidiary Guarantee to be endorsed on the Series A Notes by
the Initial Guarantor has been duly authorized by the Initial Guarantor
and, on the Closing Date, will have been duly executed and delivered by
the Initial Guarantor and will conform to the description thereof in the
Offering Memorandum. When the Series A Notes are issued and authenticated
in accordance with the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, the
Subsidiary Guarantee will be the valid and legally binding obligation of
the Initial Guarantor, enforceable against the Initial Guarantor in
accordance with its terms and entitled to the benefits of the Indenture
(assuming the due execution and delivery of the Indenture by the Trustee),
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(p) Immediately subsequent to the Merger, the Subsidiary Guarantee
to be endorsed by the Second Guarantor on the Series A Notes will be duly
authorized by the Second Guarantor and, when the Supplemental Indenture is
executed and delivered, the Subsidiary Guarantees will be the valid and
legally binding obligation of each of the Guaranteeing Subsidiaries,
enforceable against each Guaranteeing Subsidiary in accordance with its
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(q) The Subsidiary Guarantees to be endorsed on the Series B Notes
have been duly authorized by the Initial Guarantor and, immediately
subsequent to the Merger, will be duly authorized by the Second Guarantor.
When the Supplemental Indenture has been executed and
11
delivered in accordance with the terms of the Indenture and when the
Series B Notes have been issued, authenticated and delivered in accordance
with the terms of the Exchange Offer and the Indenture, the Subsidiary
Guarantees to be endorsed on the Series B Notes will be the valid and
legally binding obligations of the Guaranteeing Subsidiaries, enforceable
against each Guaranteeing Subsidiary in accordance with their terms and
entitled to the benefits of the Indenture (assuming the due execution and
delivery of the Indenture by the Trustee), except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability. When the Series B Notes are issued,
authenticated and delivered, the Subsidiary Guarantees to be endorsed on
the Series B Notes will conform to the description thereof in the Offering
Memorandum.
(r) The Registration Rights Agreement has been duly authorized by
IMED and the Initial Guarantor and, on the Closing Date, will have been
duly executed and delivered by IMED and the Initial Guarantor and will
conform to the description thereof in the Offering Memorandum. When the
Registration Rights Agreement has been duly executed and delivered, the
Registration Rights Agreement will be a valid and legally binding
agreement of IMED and the Initial Guarantor, enforceable against IMED and
the Initial Guarantor in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(s) Immediately subsequent to the Merger, the Registration Rights
Agreement and the Registration Rights Assumption will be duly authorized
by the Surviving Company and the Second Guarantor and the Registration
Rights Assumption will be validly executed and delivered by the Surviving
Company and the Second Guarantor. When the Registration Rights Assumption
has been executed and delivered, the Registration Rights Agreement will be
a valid and legally binding agreement of the Surviving Company and each of
the Guaranteeing Subsidiaries, enforceable against the Surviving Company
and each of the Guaranteeing Subsidiaries in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(t) Neither IMED nor any of its subsidiaries is and, immediately
following the Merger, neither the Surviving Company or any of its
subsidiaries will be, in violation of its respective charter or bylaws.
(u) Neither IMED nor any of its subsidiaries is in default in the
performance of any term, provision, obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which IMED or any of its subsidiaries is a
party or by which any of them is bound, or to which any of the property or
assets of IMED or any of its subsidiaries is subject, except for such
defaults as would not, individually or in the aggregate, have a Material
Adverse Effect on IMED. There exists no condition that, with notice, the
passage of time or otherwise, would constitute a default under any such
document or instrument.
(v) Immediately subsequent to the Merger, neither the Surviving
Company nor any of its subsidiaries will be in default in the performance
of any term, provision, obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of
12
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which the Surviving Company or any of its
subsidiaries will be a party or by which any of them will be bound, or to
which any of the property or assets of the Surviving Company or any of its
subsidiaries will be subject, except for such defaults as would not,
individually or in the aggregate, have a Material Adverse Effect on the
Surviving Company. Immediately subsequent to the Merger, there will exist
no condition that, with notice, the passage of time or otherwise, would
constitute a default under any such agreement.
(w) The execution, delivery and performance of the Merger Agreement,
the New Credit Facility, this Agreement and the other Operative Documents
and compliance by IMED and its subsidiaries with the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and
thereby (including, without limitation, the Merger) will not (i) require
any consent, approval, authorization or order of, or filing or
registration with, any regulatory body, administrative agency or other
governmental agency, other than (1) as may be required under state
securities or "blue sky" laws, (2) those that have been obtained or made
and (3) the filing of the merger certificates with the Secretary of State
of the State of Delaware, (ii) conflict with any of the respective
charters or bylaws of IMED or any of its subsidiaries, (iii) conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default or cause an acceleration of any obligation under,
or result in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any agreement or instrument to which IMED
or any of its subsidiaries is a party or by which it or any of them is
bound, or to which any properties of IMED or any of its subsidiaries is or
may be subject, except for (A) Liens granted pursuant to the New Credit
Facility and (B) such conflicts, breaches, violations, defaults,
accelerations, impositions and creations as would not, individually or in
the aggregate, have a Material Adverse Effect on IMED, (iv) contravene any
order of any court or governmental agency or body having jurisdiction over
IMED or any of its subsidiaries or any of their properties, (v) violate or
conflict with any law, statute, rule or regulation or administrative or
court decree applicable to IMED or any of its subsidiaries, or any of
their respective properties or (vi) result in the termination or
revocation of any Authorization (as defined below) of IMED or any of its
subsidiaries or result in any other impairment of the rights of the holder
of any such Authorization.
(x) The execution, delivery and performance of the Merger Agreement,
the Purchase Assumption, the Registration Rights Assumption, the Note
Assumption, the Supplemental Indenture and compliance by the Surviving
Company and its subsidiaries with the provisions thereof and the
consummation of the transactions contemplated thereby (including, without
limitation, the Merger) will not (i) require any consent, approval,
authorization or order of, or filing or registration with, any regulatory
body, administrative agency or other governmental agency, other than (1)
as may be required under state securities or "blue sky" laws, (2) those
that have been obtained or made and (3) the filing of the merger
certificates with the Secretary of State of the State of Delaware, (ii)
conflict with any of the respective charters or bylaws of the Surviving
Company or any of its subsidiaries, (iii) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under, or result in the
imposition or creation of (or the obligation to create or impose) a Lien
with respect to, any agreement or instrument to which the Surviving
Company or any of its subsidiaries is a party or by which it or any of
them is bound, or to which any properties of the Surviving Company or any
of its subsidiaries is or may be subject immediately subsequent to the
Merger, except for (A) Liens granted pursuant to the New Credit Facility
and (B) such conflicts, breaches, violations, defaults, accelerations,
impositions and creations as would not, individually or in the aggregate,
have a Material Adverse Effect on the
13
Surviving Company, (iv) contravene any order of any court or governmental
agency or body having jurisdiction over the Surviving Company or any of
its subsidiaries or any of their properties, (v) violate or conflict with
any law, statute, rule or regulation or administrative or court decree
applicable to the Surviving Company or any of its subsidiaries, or any of
their respective properties or (vi) result in the termination or
revocation of any Authorization (as defined below) of the Surviving
Corporation or any of its subsidiaries or result in any other impairment
of the rights of the holder of any such Authorization.
(y) Except to the extent described in the Offering Memorandum, there
is no action, suit, proceeding or investigation before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting IMED or any of its subsidiaries or any of their respective
properties which might result, singly or in the aggregate, in a Material
Adverse Effect on IMED and, to the best knowledge of IMED, no such
proceedings are contemplated or threatened.
(z) Immediately subsequent to the Merger, except as disclosed in the
Offering Memorandum there will be no action, suit, proceeding or
investigation before or by any court or governmental agency or body,
domestic or foreign, pending against or affecting the Surviving Company or
any of its subsidiaries or any of their respective properties which might
result, singly or in the aggregate, in a Material Adverse Effect on the
Surviving Company and, to the best of the knowledge of IMED and the
Surviving Company, immediately following the Merger, no such proceeding
will be threatened or contemplated.
(aa) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any
governmental agency or body which prevents the execution, delivery and
performance of any of the Operative Documents, the issuance of the Series
A Notes, or suspends the sale of the Series A Notes in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or other
order or relief of any nature by a federal or state court or other
tribunal of competent jurisdiction has been issued with respect to IMED,
IVAC Holdings or any of their respective subsidiaries which would prevent
or suspend the issuance or sale of the Series A Notes in any jurisdiction
referred to in Section 5(e).
(ab) IMED and its subsidiaries have not and, immediately subsequent
to the Merger, neither the Surviving Company nor any of its subsidiaries
will have, violated any applicable existing federal, state, local or
foreign laws or regulations ("Laws") including, but not limited to (i)
Laws relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") (ii) Laws relating to discrimination
in the hiring, promotion or pay of employees, (iii) wage and hour Laws and
(iv) provisions of the Employee Retirement Income Security Act of 1974,
which in each case would have a Material Adverse Effect on IMED, or
immediately subsequent to the Merger, the Surviving Company.
(ac) Except as set forth in the Offering Memorandum and except as
would not result, singly or in the aggregate, in a Material Adverse Effect
on IMED, IMED and each of its subsidiaries has good and marketable title,
free and clear of all Liens (except (i) Liens for taxes not yet due and
payable and (ii) Liens granted pursuant to the IMED Credit Facility and
the New Credit Facility), to all property and assets described in the
Offering Memorandum as being owned by it. All leases to which any of IMED
or any of its subsidiaries is a party are valid and binding and no default
has occurred or is continuing thereunder which would have a Material
Adverse Effect on IMED, and IMED and its subsidiaries enjoy peaceful and
14
undisturbed possession under all such leases to which any of IMED and its
subsidiaries is a party as lessee with such exceptions as do not
materially interfere with the use currently made by IMED or such
subsidiary, as the case may be.
(ad) Except as set forth in the Offering Memorandum and except as
would not result, singly or in the aggregate, in a Material Adverse Effect
on the Surviving Company, immediately subsequent to the Merger, the
Surviving Company and its subsidiaries will have good and marketable
title, free and clear of all Liens (except (i) Liens for taxes not yet due
and payable and (ii) Liens granted pursuant to the New Credit Facility) to
all property and assets described in the Offering Memorandum as property
and assets that will be owned by it immediately subsequent to the Merger.
All leases to which the Surviving Company or any of its subsidiaries will
be a party immediately subsequent to the Merger will be valid and binding
and no default shall have occurred, be continuing thereunder which would
have a Material Adverse Effect on the Surviving Company; and the Surviving
Company and its subsidiaries, immediately subsequent to the Merger, will
enjoy peaceful and undisturbed possession under all such leases to which
it or its subsidiaries is a party as lessee with such exceptions as do not
materially interfere with the use currently made by the Surviving Company
or its subsidiaries, as the case may be.
(ae) The accountants, Price Waterhouse L.L.P. and Ernst & Young
L.L.P., that have certified the financial statements and supporting
schedules included in the Offering Memorandum are independent public
accountants, as required by the Act and the Exchange Act. The historical
financial statements, together with related schedules and notes, set forth
in the Offering Memorandum comply as to form in all material respects with
the requirements applicable to registration statements on Form S-1 under
the Act.
(af) The historical financial statements of IMED and its
subsidiaries set forth in the Offering Memorandum fairly present the
combined financial position at the respective dates indicated and the
results of operations and cash flows for the respective periods indicated,
in accordance with generally accepted accounting principles in the United
States ("GAAP") consistently applied throughout such periods. The other
historical financial and statistical information and data included in the
Offering Memorandum are, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of IMED.
(ag) The historical financial statements of IVAC Holdings and its
subsidiaries and of the predecessor to IVAC Holdings and its subsidiaries
set forth in the Offering Memorandum fairly present the combined financial
position at the respective dates indicated and the results of operations
and cash flows for the respective periods indicated, in accordance with
GAAP consistently applied throughout such periods. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of IVAC Holdings (including its predecessor entities),
as the case may be.
(ah) The pro forma financial statements have been prepared on a
basis consistent with the historical financial statements of IMED and its
subsidiaries and IVAC Holdings and its subsidiaries and give effect to
assumptions made on a reasonable basis and in good faith and present
fairly the historical and proposed transactions contemplated by the
Offering Memorandum; and such pro forma financial statements comply as to
form in all material respects with the requirements applicable to pro
forma financial statements included in
15
registration statements on Form S-1 under the Act. The other pro forma
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, accurately presented and
prepared on a basis consistent with the pro forma financial statements.
(ai) All tax returns required to be filed by IMED or any of its
subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes, including, without
limitation, withholding taxes, penalties and interest, assessments, fees
and other charges due or claimed to be due from such entities have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(aj) Immediately subsequent to the Merger, all tax returns required
to be filed by the Surviving Company and its subsidiaries in any
jurisdiction will have been filed, other than those filings being
contested in good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
pursuant to such returns or pursuant to any assessment received by the
Surviving Company or any of its subsidiaries will have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided.
(ak) IMED and its subsidiaries have complied and, immediately
subsequent to the Merger, the Surviving Company and its respective
subsidiaries will have complied, with all of the provisions of Florida
H.B. 1771, codified as Section 517.075 of the Florida statutes, and all
regulations promulgated thereunder relating to issuers doing business with
the Government of Cuba or with any person or any affiliate located in
Cuba.
(al) IMED and its subsidiaries have all certificates, consents,
exemptions, orders, permits, franchises, licenses, authorizations, or
other approvals (each, an "Authorization") of and from, and has made all
declarations and filings with and notices to, all federal, state, local
and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, necessary or required to own, lease,
license, operate and use its properties and assets and to conduct their
business in the manner described in the Offering Memorandum except for
such Authorizations the absence of which would not have a Material Adverse
Effect on IMED; all such Authorizations are valid and in full force and
effect; IMED and its subsidiaries are in compliance with the terms and
conditions of all such Authorizations and with the rules and regulations
of the regulatory authorities and governing bodies having jurisdiction
with respect thereto; and neither IMED nor any subsidiary has received any
notice, or has any knowledge or belief (or any basis therefor), that any
governmental body or agency is considering limiting, suspending or
revoking any such Authorization.
(am) Immediately subsequent to the Merger, the Surviving Company and
its subsidiaries will have such Authorizations, including without
limitation under any applicable Environmental Laws, as will be necessary
to own, lease and operate their respective properties and to conduct their
business in the manner described in the Offering Memorandum, except for
such Authorizations the absence of which would not have a Material Adverse
Effect on the Surviving Company immediately subsequent to the Merger;
immediately subsequent to the Merger, all such Authorizations will be
valid and in full force and effect; immediately subsequent to the Merger,
the Surviving Company and its subsidiaries will be in compliance with the
terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto; and immediately subsequent to the
Merger, neither the Surviving Company nor any subsidiary will
16
have received any notice, or has any knowledge or belief (or any basis
therefor), that any governmental body or agency is considering limiting,
suspending or revoking any such Authorization.
(an) In connection with the Merger, IMED has reviewed the effect of
Environmental Laws and the disposal of hazardous or toxic substances or
wastes, pollutants or contaminants on (i) the business, assets, operation
and properties of IMED and its subsidiaries and (ii) the business, assets,
operations and properties of the Surviving Company and its subsidiaries
immediately following the Merger, and identified and evaluated associated
costs and liabilities (including, without limitation, all material capital
and operating expenditures required for clean-up, closure of properties
and compliance with Environmental Laws, all permits, licenses and
approvals, all related constraints on operating activities and all
potential liabilities to third parties). On the basis of such reviews,
IMED has reasonably concluded that such associated costs and liabilities
would not have a Material Adverse Effect on IMED and, immediately
subsequent to the Merger, have a Material Adverse Effect on the Surviving
Company.
(ao) Neither IMED nor its subsidiaries are and, immediately
subsequent to the Merger, neither the Surviving Company nor its
subsidiaries will be (a) an "investment company" or a company "controlled"
by an investment company within the meaning of the Investment Company Act
of 1940, as amended, or (b) a "holding company" or a "subsidiary company"
of a holding company or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended or (c) subject to
regulation under the Federal Power Act, the Interstate Commerce Act or any
federal or state statute or regulation limiting its respective ability to
incur indebtedness for borrowed money.
(ap) There are no holders of securities of IMED or any of its
subsidiaries who, by reason of the execution by IMED of the Merger
Agreement or the execution by IMED and the Initial Guarantor of this
Agreement or the consummation by IMED and the Initial Guarantor of the
transactions contemplated hereby and thereby, have the right to request or
demand that IMED or any of its subsidiaries register under the Act or
analogous foreign laws and regulations securities held by them.
(aq) Immediately subsequent to the Merger, there will be no holders
of securities of the Surviving Company or any of its subsidiaries who, by
reason of execution of the Merger Agreement, the execution by the
Surviving Company of the Note Assumption, the execution by the Second
Guarantor of the Supplemental Indenture or the consummation by the
Surviving Company and Second Guarantor of the transactions contemplated
hereby and thereby, have the right to request or demand that the Surviving
Company or any of its subsidiaries, register under the Act or analogous
foreign laws and regulations securities held by them.
(ar) Except for the fee to be paid to KPMG Peat Marwick LLP in
connection with the Merger, there are and, immediately subsequent to the
Merger, there will be no contracts, agreements or understandings between
IMED, the Surviving Company or any of their respective subsidiaries and
any person that would give rise to a valid claim against IMED, the
Surviving Company, their respective subsidiaries or any Initial Purchaser
for a brokerage commission, finder's fee or like payment in connection
with the issuance, purchase and sale of the Notes.
(as) IMED and its subsidiaries own free and clear of all Liens or
have the right to use free and clear of any rights of third parties that
adversely affect such use by IMED and its subsidiaries, all patents,
patent rights, licenses, inventions, copyrights, know-how (including
17
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names (collectively, "Intellectual Property") material to
the business of IMED and its subsidiaries, taken as a whole. The use of
such Intellectual Property in connection with the business and operations
of IMED and its subsidiaries do not to IMED's knowledge, infringe on the
rights or claimed rights of any person. No other person is, to IMED's
knowledge, infringing upon any of the Intellectual Property or has
notified IMED or any of its subsidiaries that it is claiming ownership of,
or the right to use any Intellectual Property owned by IMED or its
subsidiaries. IMED and its subsidiaries have taken all reasonable steps to
protect the Intellectual Property from infringement by any other person,
except where the failure to take such steps would not, individually or in
the aggregate, have a Material Adverse Effect on IMED. Other than in
connection with the use of so-called "off-the-shelf" software and except
as otherwise disclosed in the Offering Memorandum, IMED and its
subsidiaries are not obligated or under any liability whatsoever to make
any payment in excess of $150,000 per fiscal year, in the aggregate, by
way of royalties, fees or otherwise to any persons with respect to the use
of the Intellectual Property, except that subsidiaries of IMED may be so
obligated to IMED. Neither IMED nor any of its subsidiaries has received
(i) any notice of infringement of or conflict with assessed rights of
others with respect to any Intellectual Property or (ii) any notice of an
action or proceeding seeking to limit, cancel or question the validity of
any Intellectual Property, which singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, might have a
Material Adverse Effect on IMED.
(at) Immediately subsequent to the Merger, the Surviving Company and
its subsidiaries will own or have the right to use free and clear of all
Liens or have the right to use free and clear of any rights of third
parties that adversely affect such use by the Surviving Company and its
subsidiaries, all Intellectual Property material to the business of the
Surviving Company and its subsidiaries, taken as a whole. Immediately
subsequent to the Merger, the use of such Intellectual Property in
connection with the business and operations of the Surviving Company and
its subsidiaries will not to the Surviving Company's knowledge, infringe
on the rights or claimed rights of any person. Immediately subsequent to
the Merger, no other person will be, to the Surviving Company's knowledge,
infringing upon any of the Intellectual Property or immediately subsequent
to the Merger, will have notified the Surviving Company and any of its
subsidiaries that it is claiming ownership of, or the right to use any
Intellectual Property owned by the Surviving Company or its subsidiaries.
Immediately subsequent to the Merger, the Surviving Company and its
subsidiaries will have taken all reasonable steps to protect the
Intellectual Property from infringement by any other person, except where
the failure to take such steps would not, individually or in the
aggregate, have a Material Adverse Effect on the Surviving Company. Other
than in connection with the use of so-called "off-the-shelf" software and
except as otherwise disclosed in the Offering Memorandum, immediately
subsequent to the Merger, the Surviving Company and its subsidiaries are
not obligated or under any liability whatsoever to make any payment in
excess of $150,000 per fiscal year, in the aggregate, by way of royalties,
fees or otherwise to any persons with respect to the use of the
Intellectual Property, except that subsidiaries of the Surviving Company
may be so obligated to the Surviving Company. Immediately subsequent to
the Merger, except as otherwise disclosed in the Offering Memorandum,
neither the Surviving Company nor any of its subsidiaries has received (i)
any notice of infringement of or conflict with assessed rights of others
with respect to any Intellectual Property or (ii) any notice of an action
or proceeding seeking to limit, cancel or question the validity of any
Intellectual Property, which singly or in the aggregate, if the subject of
any unfavorable decision, ruling or finding, might have a Material Adverse
Effect on the Surviving Company.
18
(au) Immediately subsequent to the Merger, the present fair saleable
value of the assets of the Surviving Company will exceed the amount that
will be required to be paid on or in respect of the existing debts and
other liabilities (including, without limitation, contingent liabilities)
of the Surviving Company as they become absolute and matured. Immediately
subsequent to the Merger, the assets of the Surviving Company will not
constitute unreasonably small capital to carry out its businesses as
conducted or as proposed to be conducted. Immediately subsequent to the
Merger, the Surviving Company does not intend to, nor does it believe that
it will, incur debts beyond its ability to pay such debts as they mature.
The debt incurred in connection with the Merger, and the debt represented
by the Series A Notes is being incurred, for proper purposes and in good
faith. Immediately subsequent to the Merger, the present fair saleable
value of the assets of the Surviving Company will exceed the amount
required to be paid on or in respect of the existing debts and other
liabilities (including, without limitation, contingent liabilities) of the
Surviving Company as they became absolute and matured. Immediately
subsequent to the Merger, the assets of the Surviving Company, will not
constitute unreasonably small capital to carry out its businesses as it
will be conducted, including, without limitation, the capital needs of the
Surviving Company, taking into account the projected capital requirements
and capital availability of the Surviving Company.
(av) Neither IMED nor any of its subsidiaries nor any agent thereof
acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the
Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
Immediately subsequent to the Merger, neither the Surviving Company nor
any of its subsidiaries nor any agent thereof acting on the behalf of them
will have taken any action that might cause this Agreement or the issuance
or sale of the Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(aw) Except as would not otherwise be unlawful, IMED has not (i)
taken, directly or indirectly, any action designed to cause or to result
in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of IMED to facilitate the sale or resale of the Notes or (ii) since the
date of the Preliminary Offering Memorandum (A) sold, bid for, purchased,
or paid anyone other than the Initial Purchasers any compensation for
soliciting purchases of, the Series A Notes or (B) paid or agreed to pay
to any person any compensation for soliciting another to purchase any
other securities of IMED.
(ax) Except as would not otherwise be unlawful, immediately
subsequent to the Merger, the Surviving Company will not have (i) taken,
directly or indirectly, any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Surviving Company to facilitate the sale or resale of the Notes or (ii)
since the date of the Preliminary Offering Memorandum (A) sold, bid for,
purchased, or paid anyone other than the Initial Purchasers any
compensation for soliciting purchases of, the Series A Notes or (B) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Surviving Corporation.
(ay) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
19
(az) No registration under the Act of the Series A Notes are
required for the sale of the Series A Notes to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming (i) that the
purchasers who buy the Series A Notes in the Exempt Resales are either
QIBs or Accredited Investors (up to a maximum of 10 such Accredited
Investors) and (ii) the accuracy of the Initial Purchasers'
representations regarding the absence of general solicitation in
connection with the sale of Series A Notes to the Initial Purchasers and
the Exempt Resales contained herein. No form of general solicitation or
general advertising was used by IMED, IVAC Holdings or any of their
respective representatives in connection with the offer and sale of any of
the Series A Notes or in connection with Exempt Resales, including, but
not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. No securities of the same
class as the Series A Notes have been issued and sold by IMED within the
six-month period immediately prior to the date hereof.
(aaa) Prior to the commencement of the Exchange Offer or the
effectiveness of the Shelf Registration Statement, the Indenture is not
required to be qualified under the Trust Indenture Act of 1939, as amended
(the "TIA").
(aab) Immediately subsequent to the Merger, no subsidiary listed on
Schedule C hereto (i) will have contributed, in the last fiscal year or
for the nine months ended September 30, 1996, greater than 5% of the
Surviving Company's pro forma consolidated net revenue, Adjusted EBITDA
(as defined in the Offering Memorandum) or net earnings or (ii) at any of
September 30, 1996 or December 31, 1995 constituted greater than 5% of the
pro forma total assets of the Surviving Company.
(aac) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
shall be deemed to be a representation and warranty by the Company to the
Initial Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company, counsel to the Guaranteeing Subsidiaries and
counsel to the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of the Initial
Purchasers, severally and not jointly, represent and warrant to the Company and
agree that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Investor, in either case with such knowledge and experience in financial
and business matters as is necessary in order to evaluate the merits and
risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (i) is not acquiring the Series A Notes
with a view to any distribution thereof that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (ii) will be reoffering and reselling the Series A Notes
only to QIBs in reliance on the exemption from the registration
requirements of the Act provided by Rule 144A and to up to a maximum of 10
Accredited Investors that execute and deliver a letter containing certain
representations and agreements in the form attached as Annex A to the
Offering Memorandum.
20
(c) No form of general solicitation or general advertising (within
the meaning of Regulation D under the Act) has been or will be used by
such Initial Purchaser or any of its representatives in connection with
the offer and sale of any of the Series A Notes, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Series A Notes only
from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Such Initial Purchaser further agrees that it will offer to
sell the Series A Notes only to, and will solicit offers to buy the Series
A Notes only from, persons who in purchasing such Series A Notes will be
deemed to have represented and agreed (i) if such Eligible Purchasers are
QIBs, that they are purchasing the Series A Notes for their own accounts
or accounts with respect to which they exercise sole investment discretion
and that they or such accounts are QIBs, (ii) that such Series A Notes
will not have been registered under the Act and may be resold, pledged or
otherwise transferred only (1)(a) to a person who the seller reasonably
believes is a QIB in a transaction meeting the requirements of Rule 144A,
(b) in a transaction meeting the requirements of Rule 144 under the Act,
(c) outside the United States to a foreign person in a transaction meeting
the requirements of Rule 904 under the Act or (d) in accordance with
another exemption from the registration requirements of the Act (and
based, in the case of clauses (b), (c) and (d) above, upon an opinion of
counsel if the Company so requests), (2) to the Company or (3) pursuant to
an effective registration statement under the Act and, in each case, in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction and (iii) that the holder
will, and each subsequent holder is required to, notify any purchaser from
it of the security evidenced thereby of the resale restrictions set forth
in (ii) above.
(e) Such Initial Purchaser is not a pension or welfare plan (as
defined in Section 3 of ERISA) and is not acquiring the Series A Notes on
behalf of a pension or welfare plan.
(f) Such Initial Purchaser also understands that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 9 hereof, counsel to the Company and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and such Initial Purchaser hereby consents to such
reliance.
8. Indemnification.
(a) The Company and each of the Guaranteeing Subsidiaries agree,
jointly and severally, to indemnify and hold harmless (i) each Initial
Purchaser, (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any Initial
Purchaser (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of the Initial Purchasers or any controlling person (any person
referred to in clause (i), (ii) or (iii) in such capacity may hereinafter
be referred to as an "Indemnified Person") to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation and as
incurred, reimbursement of all reasonable costs of investigating,
preparing, pursuing or defending any claim or action, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
including the fees and expenses of counsel to any Indemnified Person)
directly or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue statement of
a material fact contained
21
in the Preliminary Offering Memorandum, the Offering Memorandum or any
Rule 144A Information provided by the Company or any Guaranteeing
Subsidiary to any holder or prospective purchaser of Series A Notes
pursuant to Section 5(j) (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
are caused by an untrue statement or omission or alleged untrue statement
or omission that is made in reliance upon and in conformity with
information relating to any of the Initial Purchasers furnished in writing
to the Company by any of the Initial Purchasers expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto). The Company and each Guaranteeing
Subsidiary also agree, jointly and severally, to reimburse each
Indemnified Person for any and all fees and expenses (including, without
limitation, the fees and expenses of counsel) as they are incurred in
connection with enforcing such Indemnified Person's rights under this
Agreement (including, without limitation, its rights under this Section
8). The Company shall notify the Initial Purchasers promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or an Indemnified
Person.
(b) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any of the Indemnified Persons with respect to which indemnity may
be sought against the Company or any Guaranteeing Subsidiary, such
Indemnified Person shall promptly notify the Company in writing (provided,
that the failure to give such notice shall not relieve the Issuers of its
obligations pursuant to this Agreement) and the Company shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all fees and
expenses (regardless of whether it is ultimately determined that an
Indemnified Person is not entitled to indemnification hereunder). Such
Indemnified Person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both
such Indemnified Person and the Company and such Indemnified Person shall
have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company and the Guaranteeing Subsidiaries (in which case
the Company shall not have the right to assume the defense of such action
on behalf of such Indemnified Person, it being understood, however, that
the Company shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Indemnified Persons, which
firm shall be designated in writing by the Initial Purchasers and that all
such fees and expenses shall be reimbursed as they are incurred). Neither
the Company or any Guaranteeing Subsidiary shall be liable for any
settlement of any such action or proceeding effected without the prior
written consent of the Company, but if settled with the written consent of
the Company, which consent will not be unreasonably withheld, the Company
and each Guaranteeing Subsidiary agree, jointly and severally, to
indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any such
settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified
22
Person shall have requested the Company or any Guaranteeing Subsidiary to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the Company and the
Guaranteeing Subsidiaries agree that they shall be liable for any
settlement of any proceeding effected without any of the Company's written
consent if (i) such settlement is entered into more than ten (10) business
days after receipt by the Company of the aforesaid request, and (ii) the
Company or any Guaranteeing Subsidiary shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. Neither the Company or any Guaranteeing Subsidiary shall,
without the prior written consent of each Indemnified Person, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding.
(c) Each of the Initial Purchasers agrees, severally and not
jointly, to indemnify and hold harmless the Company, any person
controlling (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company and the officers, directors, partners,
employees, representatives and agents of each such person to the same
extent as the foregoing indemnity from the Company to each of the
Indemnified Persons, but only with respect to claims and actions based on
information relating to such Initial Purchasers furnished in writing by
such Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum; provided however, that in no case
shall any Initial Purchaser be liable or responsible for any amount in
excess of the discounts and commissions received by such Initial
Purchaser, as set forth in the cover page of the Offering Memorandum.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party (or parties, as applicable) on the one
hand and the indemnified party (or parties, as applicable) on the other
hand from the offering of the Series A Notes 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
indemnifying party (or parties, as applicable) and the indemnified party,
(or parties, as applicable) as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guaranteeing Subsidiaries on the one hand, and the Initial Purchasers, on
the other hand, shall be deemed to be in the same proportion as the total
proceeds from the offering (net of Initial Purchasers' discounts and
commissions but before deducting expenses) received by the Company bear to
the total discounts and commissions received by the Initial Purchasers, in
each case, as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Guaranteeing
Subsidiaries, on the one hand, and 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 related to information supplied
by the Company and the Guaranteeing Subsidiaries, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
23
The Company, the Guaranteeing Subsidiaries and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses referred to in the
immediately preceding paragraph 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, the Initial Purchasers (and the Initial Purchasers' related
Indemnified Persons) shall not be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discount
applicable to the Series A Notes purchased by such Initial Purchaser
pursuant to this Agreement exceeds the amount equal to (i) the amount of
any damages which the Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission plus (ii) any amount paid or contributed by the Initial
Purchaser pursuant to the Registration Rights Agreement. 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.
(e) The indemnity and contribution agreements of the Company and the
Guaranteeing Subsidiaries contained in this Section 8 are in addition to
any liability or obligation which the Company and the Guaranteeing
Subsidiaries may otherwise have to the Indemnified Persons.
9. Conditions of Initial Purchaser's Obligations. The several obligations
of the Initial Purchasers to purchase and pay for the Series A Notes, as
provided herein, shall be subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the date hereof and the Closing Date,
respectively. All of the representations and warranties of IVAC Holdings and
IVAC Medical Systems contained in the Merger Agreement shall be true and
correct, in all material respects, on the Closing Date with the same force and
effect as if made on and as of the Closing Date. The Company shall have
performed or complied in all material respects with all of their obligations and
agreements herein contained and required to be performed or complied with by
them at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies distributed
to the Initial Purchasers not later than 1:00 p.m., New York City time, on the
day following the date of this Agreement or at such later date and time as to
which the Initial Purchasers may agree in writing and no stop order suspending
the qualification or exemption from qualification of the Series A Notes in any
jurisdiction referred to in Section 5(e) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending,
threatened or, to the Company's knowledge, contemplated.
(c) (i) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
that would as of the Closing Date, prevent the issuance of the Series A Notes;
(ii) no injunction, restraining order or order of any nature by a federal or
state court of competent jurisdiction shall have been issued as of the Closing
Date that would prevent the issuance of the Series A Notes; and (iii) on the
Closing Date, no action, suit or proceeding shall be pending against or
affecting or threatened against IMED, IVAC Holdings or any of their respective
subsidiaries before any court or arbitrator or any governmental body, agency or
official
24
that, if adversely determined, would, individually or in the aggregate, have a
Material Adverse Effect on IMED or the Surviving Company, as the case may be.
(d) (i) Since the date of the latest balance sheet in the Offering
Memorandum, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the assets,
properties, business, results of operations, condition (financial or otherwise)
or prospects, whether or not arising in the ordinary course of business, of IMED
and its subsidiaries, taken as a whole, or IVAC Holdings and its subsidiaries,
taken as a whole, (ii) since the date of the latest balance sheet included in
the Offering Memorandum, there shall not have been any material change, or any
development that is reasonably likely to result in a material change, in the
capital stock or in the long-term debt, or material increase in short-term debt,
of IMED and its subsidiaries, taken as a whole, or IVAC Holdings and its
subsidiaries, taken as a whole, after giving effect to the Merger from that set
forth in the Offering Memorandum and (iii) none of IMED, IVAC Holdings or any of
their respective subsidiaries shall have any liability or obligation, direct or
contingent, which is, or after giving effect to the Merger will be, material to
IMED or the Surviving Corporation.
(e) The Initial Purchasers shall have received a certificate, dated the
Closing Date, signed by (i) the President and (ii) the principal financial or
accounting officer of IMED confirming, as of the Closing Date, the matters set
forth in paragraphs (a), (b), (c) and (d) of this Section 9.
(f) On the Closing Date, the Initial Purchasers shall have received an
opinion (satisfactory to the Initial Purchasers and the Initial Purchasers'
counsel), dated the Closing Date, of Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov &
Xxxx, counsel for IMED and the Initial Guarantor, substantially to the effect
that:
1. IMED and each of its subsidiaries listed on Schedule D
hereto (the "IMED Domestic Subsidiaries") is a duly organized and
validly existing corporation in good standing under the laws of its
jurisdiction of incorporation, has the requisite corporate power and
authority to own, lease and operate its properties and to conduct
its business as it is currently being conducted and as described in
the Offering Memorandum, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction where the
ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure to be
so qualified would not, singly or in the aggregate, have a Material
Adverse Effect on IMED.
2. Immediately prior to the Initial Merger, the entities
listed on Schedule B hereto will be the only subsidiaries, direct or
indirect, of IMED. All of the issued and outstanding shares of
capital stock of, or other ownership interests in, each IMED
Domestic Subsidiary are owned of record, directly or indirectly, by
IMED; all such capital stock or other ownership interests have been
duly and validly authorized and issued and are fully paid and
non-assessable and, to the knowledge of such counsel, have not been
issued in violation of any preemptive rights arising as a matter of
law.
3. When the Series A Notes are issued and delivered pursuant
to this Agreement, no Series A Note will be of the same class
(within the meaning of Rule 144A under the Act) as securities of
IMED that are listed on a national securities exchange registered
under Section 6 of the Exchange Act or that are quoted in a United
States automated inter-dealer quotation system.
25
4. IMED has full corporate power and authority to execute,
deliver and perform its obligations under the Merger Agreement, the
New Credit Facility, this Agreement, the Indenture, the Registration
Rights Agreement and the other Operative Documents to which it is a
party and to consummate the transactions contemplated by the Merger
Agreement, the New Credit Facility, this Agreement and the other
Operative Documents to which it is a party, and to issue, sell and
deliver the Series A Notes pursuant to this Agreement. IMED Merger
Sub has full corporate power and authority to execute, deliver and
perform its obligations under the Merger Agreement. The Initial
Guarantor has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement and the other Operative Documents to
which it is a party and to consummate the transactions contemplated
by this Agreement and the other Operative Documents to which it is a
party, and to issue, sell and deliver its Subsidiary Guarantee
pursuant to this Agreement. The Merger Agreement has been duly
authorized and validly executed and delivered by IMED and IMED
Merger Sub and constitutes a valid and legally binding agreement of
IMED and IMED Merger Sub, enforceable against IMED and IMED Merger
Sub in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought at law or in equity).
5. This Agreement has been duly authorized and validly
executed and delivered by IMED and the Initial Guarantor.
6. The Indenture has been duly authorized and validly executed
and delivered by IMED and the Initial Guarantor and, assuming due
authorization, execution and delivery thereof by the Trustee, the
Indenture constitutes the valid and legally binding agreement of
IMED and the Initial Guarantor, enforceable against IMED and the
Initial Guarantor in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights generally and to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought at law or in equity).
7. The Registration Rights Agreement has been duly authorized
and validly executed and delivered by IMED and the Initial Guarantor
and, assuming the due execution and delivery thereof by the Initial
Purchasers, the Registration Rights Agreement constitutes the valid
and legally binding agreement of IMED and the Initial Guarantor,
enforceable against IMED and the Initial Guarantor in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights generally and to general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
at law or in equity).
8. The Series A Notes have been duly authorized and validly
executed by IMED and, when issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement,
the Series A Notes will be valid and legally binding obli-
26
gations of IMED, enforceable against IMED in accordance with their
terms and entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights generally and to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought at law or in equity).
9. The Subsidiary Guarantee endorsed on the Series A Notes has
been duly authorized and validly executed by the Initial Guarantor
and, when the Series A Notes have been issued and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with the terms of this
Agreement, the Subsidiary Guarantee will be the valid and legally
binding obligation of the Initial Guarantor, enforceable against the
Initial Guarantor in accordance with its terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought at law or in equity).
10. The Subsidiary Guarantee to be endorsed on the Series B
Notes has been duly authorized by the Initial Guarantor.
11. No registration under the Act of the Series A Notes is
required for the sale of the Series A Notes to the Initial
Purchasers as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchaser is a QIB, (ii) the
purchasers who buy the Series A Notes in the Exempt Resales are
either QIBs or Accredited Investors (up to a maximum of 10 such
Accredited Investors), (iii) the accuracy of the Initial Purchaser's
representations regarding the absence of general solicitation in
connection with the sale of Series A Notes to the Initial Purchasers
and the Exempt Resales contained in this Agreement, (iv) the
accuracy of the representations in the second sentence of Section
6(az)) of this Agreement and (v) with respect to Accredited
Investors, the accuracy of the representations made by each
Accredited Investor as set forth in the letter of representation
executed by such Accredited Investor in the Form of Annex A to the
Offering Memorandum.
12. Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date, complied with the requirements
of Rule 144A(d)(4) of the Act.
13. Neither IMED nor any of its subsidiaries is (a) an
"investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended, (b) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or (c)
subject to regulation under the Federal Power Act, the Interstate
Commerce Act or any federal or state statute or regulation limiting
its respective ability to incur indebtedness for borrowed money.
27
14. The execution, delivery and performance of the Merger
Agreement, the New Credit Facility, this Agreement and the other
Operative Documents and compliance by IMED and its subsidiaries with
the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby (including, without
limitation, the Merger) will not (i) require any consent, approval,
authorization or order of, or filing or registration with, any
regulatory body, administrative agency or other governmental agency,
other than (1) as may be required under state securities or "blue
sky" laws, (2) those that have been obtained or made and (3) the
filing of the merger certificates with the Secretary of State of the
State of Delaware, (ii) conflict with any of the respective charters
or bylaws of IMED or any of its subsidiaries, (iii) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default or cause an acceleration of any
obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a Lien with respect to, any
agreement or instrument known to us to which IMED or any of its
subsidiaries is a party or by which it or any of them is bound, or
to which any properties of IMED or any of its subsidiaries is or may
be subject, except for (A) Liens granted pursuant to the New Credit
Facility and (B) such conflicts, breaches, violations, defaults,
accelerations, impositions and creations as would not, individually
or in the aggregate, have a Material Adverse Effect on IMED, (iv)
contravene any order known to us of any court or governmental agency
or body having jurisdiction over IMED or any of its subsidiaries or
any of their properties, (v) violate or conflict with any law,
statute, rule or regulation or administrative or court decree
applicable to IMED or any of its subsidiaries, or any of their
respective properties result in termination or revocation of any
material permits or licenses owned by the Company or any of its
subsidiaries or (vi) result in the termination or revocation of any
material Authorization of IMED or any of its subsidiaries or result
in any other material impairment of the rights of the holder of any
such Authorization. Notwithstanding the foregoing provisions of this
paragraph, in accordance with customary government practices certain
government contracts which are being transferred as part of the
transactions contemplated hereby will be novated after the
consummation of the Merger.
15. To the knowledge of such counsel, no action has been taken
and no law, statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency or body that prevents
the issuance of the Series A Notes or suspends the sale of the
Series A Notes in any jurisdiction referred to in Section 5(e) of
this Agreement; and no injunction, restraining order or order of any
nature by a federal or state court or other tribunal of competent
jurisdiction has been issued with respect to IMED or any of its
subsidiaries that would prevent or suspend the issuance or sale of
the Series A Notes in any jurisdiction referred to in Section 5(e)
of this Agreement.
16. The Indenture conforms as to form in all material respects
with the requirements of the TIA, and the rules and regulations of
the Commission applicable to an indenture which is qualified
thereunder. It is not necessary in connection with the offer, sale
and delivery of the Series A Notes to the Initial Purchasers in the
manner contemplated by this Agreement or in connection with the
Exempt Resales to qualify the Indenture under the TIA.
28
17. The statements in the Offering Memorandum under the
captions "Risk Factors - Subordination," "Risk Factors - Fraudulent
Transfer Considerations," "Risk Factors - Enforceability of
Subsidiary Guarantees," "The Merger," "Description of Notes,"
"Description of New Credit Facility" and "Notice to Investors"
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referenced therein, fairly and
accurately present in all material respects the information set
forth therein with respect to such legal matters, documents and
proceedings.
18. To the knowledge of such counsel, except to the extent
described in the Offering Memorandum, there is no action, suit,
proceeding or investigation before or by any court or governmental
agency or body, domestic or foreign, pending against or affecting
IMED or any of its subsidiaries or any of their respective
properties which might result, singly or in the aggregate, in a
Material Adverse Effect on IMED.
19. IVAC Holdings has full corporate authority to execute,
deliver and perform its obligations under the Note Assumption, the
Registration Rights Assumption, the Purchase Assumption and to
consummate the transactions contemplated by the Note Assumption, the
Registration Rights Assumption, the Purchase Assumption and the
Secondary Mergers. The Second Guarantor has full corporate authority
to execute, deliver and perform its obligations under its Subsidiary
Guarantee, the Supplemental Indenture, the Registration Rights
Assumption, the Purchase Assumption and to consummate the
transactions contemplated by the Supplemental Indenture, the
Registration Rights Assumption and the Purchase Assumption.
20. The execution, delivery and performance of the Merger
Agreement, the Purchase Assumption, the Registration Rights
Assumption, the Note Assumption, the Supplemental Indenture and
compliance by the Surviving Company and its subsidiaries with the
provisions thereof and the consummation of the transactions
contemplated thereby (including, without limitation, the Merger)
will not (i) require any consent, approval, authorization or order
of, or filing or registration with, any regulatory body,
administrative agency or other governmental agency, other than (1)
as may be required under state securities or "blue sky" laws, (2)
those that have been obtained or made and (3) the filing of the
merger certificates with the Secretary of State of the State of
Delaware, (ii) conflict with any of the respective charters or
bylaws of the Surviving Company or any of its subsidiaries, (iii)
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default or cause an acceleration
of any obligation under, or result in the imposition or creation of
(or the obligation to create or impose) a Lien with respect to, any
agreement or instrument known to us to which the Surviving Company
or any of its subsidiaries is a party or by which it or any of them
is bound, or to which any properties of the Surviving Company or any
of its subsidiaries is or may be subject immediately subsequent to
the Merger, except for (A) Liens granted pursuant to the New Credit
Facility and (B) such conflicts, breaches, violations, defaults,
accelerations, impositions and creations as would not, individually
or in the aggregate, have a Material Adverse Effect on the Surviving
Company, (iv) contravene any order known to us of any court or
governmental agency or body having jurisdiction over the Surviving
Company or any of its subsidiaries or any of their properties, (v)
violate or conflict with any law, statute, rule or regulation or
administrative or court decree applicable to the Surviving
29
Company or any of its subsidiaries, or any of their respective
properties or (vi) result in the termination or revocation of any
Authorization (as defined below) of the Surviving Corporation or any
of its subsidiaries or result in any other impairment of the rights
of the holder of any such Authorization. Notwithstanding the
foregoing provisions of this paragraph, in accordance with customary
government practices certain government contracts which are being
transferred as part of the transactions contemplated hereby will be
novated after the consummation of the Merger.
21. After giving effect to the Merger, to the knowledge of
such counsel, the entities listed on Schedule C hereto will be the
only subsidiaries, direct or indirect, of the Surviving Company. All
of the issued and outstanding shares of capital stock of, or other
ownership interests in, each subsidiary of the Surviving Company
listed on Schedule E hereto (the "Surviving Company Domestic
Subsidiaries") are owned of record, directly or indirectly, by the
Surviving Company; all such capital stock or other ownership
interests have been duly and validly authorized and issued and are
fully paid and non-assessable and, to the knowledge of such counsel,
have not been issued in violation of any preemptive rights arising
as a matter of law.
22. The Surviving Company and each of the Surviving Company
Domestic Subsidiaries is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation, has the corporate power and authority to own, lease
and operate its properties and to conduct its business as it is
currently being conducted and as described in the Offering
Memorandum, and each of the Surviving Company Domestic Subsidiaries
is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect on the Surviving Company.
23. Each of this Agreement, the Purchase Assumption, the
Registration Rights Agreement, the Registration Rights Assumption,
the Indenture and the Note Assumption has been duly authorized by
the Surviving Company, and each of the Purchase Assumption, the
Registration Rights Assumption and the Note Assumption has been
validly executed and delivered by the Surviving Company and are
valid and legally binding agreements of the Surviving Company. Each
of this Agreement, the Purchase Assumption, the Registration Rights
Agreement, the Registration Rights Assumption, the Indenture and the
Supplemental Indenture has been duly authorized by the Second
Guarantor, and each of the Purchase Assumption, the Registration
Rights Assumption and the Supplemental Indenture has been validly
executed and delivered by the Second Guarantor.
24. The Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, is a valid and legally binding
agreement of the Surviving Company and each of the Guaranteeing
Subsidiaries, enforceable against the Surviving Company and each of
the Guaranteeing Subsidiaries in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights generally and to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought at law or in equity).
30
25. The Registration Rights Agreement, assuming the due
execution and delivery thereof by the Initial Purchasers, is a valid
and legally binding agreement of the Surviving Company and each of
the Guaranteeing Subsidiaries, enforceable against the Surviving
Company and each of the Guaranteeing Subsidiaries in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity,
including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought at law or
in equity).
26. The Series A Notes are valid and legally binding
obligations of the Surviving Company, enforceable against the
Surviving Company in accordance with their terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought at law or in equity).
27. The Subsidiary Guarantees endorsed on the Series A Notes
are the valid and legally binding obligations of the Guaranteeing
Subsidiaries, enforceable against the Guaranteeing Subsidiaries in
accordance with their respective terms and entitled to the benefits
of the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights generally and to general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
at law or in equity).
28. When the Series B Notes are issued and authenticated in
accordance with the terms of the Exchange Offer and the Indenture,
the Series B Notes will be the valid and legally binding obligations
of the Surviving Company, enforceable against the Surviving Company
in accordance with their terms and entitled to the benefits of the
Indenture (assuming the due execution and delivery of the Indenture
by the Trustee), subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights generally and to general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
at law or in equity).
29. When the Series B Notes are issued, authenticated and
delivered in accordance with the terms of the Exchange Offer and the
Indenture, the Subsidiary Guarantees to be endorsed on the Series B
Notes will be the valid and legally binding obligations of the
Guaranteeing Subsidiaries, enforceable against the Guaranteeing
Subsidiaries in accordance with their terms and entitled to the
benefits of the Indenture (assuming the due execution and delivery
of the Indenture by the Trustee), subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought at law or in equity).
31
30. To the knowledge of such counsel, except as disclosed in
the Offering Memorandum, there is no action, suit, proceeding or
investigation before or by any court or governmental agency or body,
domestic or foreign, pending against or affecting the Surviving
Company or any of its subsidiaries or any of their respective
properties which might result, singly or in the aggregate, in a
Material Adverse Effect on the Surviving Company.
In giving their opinion required by this subsection 9(f), Xxxxxx
Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx shall also state that such counsel
has participated in conferences with directors, officers and other
representatives of IMED, IVAC Holdings and IVAC Medical Systems,
representatives of the independent public accountants of IMED and IVAC
Holdings, the Initial Purchasers' representatives and counsel for the
Initial Purchasers, in connection with the preparation of the Preliminary
Offering Memorandum and Offering Memorandum and has considered the matters
required to be stated therein and the statements contained therein and,
although such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Preliminary
Offering Memorandum and Offering Memorandum (other than those that such
counsel must opine on pursuant to paragraph (18) of this subsection 9(f))
such counsel advises you that, on the basis of the foregoing, no facts
have come to such counsel's attention which led it to believe that the
Preliminary Offering Memorandum (as amended or supplemented), as of its
date, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements contained therein not misleading.
The opinion of Xxxxxx Xxxxxx Butowsky Xxxxxxx Xxxxxx & Xxxx may
state that the opinions set forth in paragraphs 21 through 30 of this
subsection 9(f) shall be deemed rendered immediately subsequent to the
Merger.
The opinion of Xxxxxx Xxxxxx Butowsky Xxxxxxx Xxxxxx & Xxxx shall be
rendered to you at the request of the Company and shall so state therein.
For purposes of the opinion of Xxxxxx Xxxxxx Butowsky Xxxxxxx Xxxxxx
& Xxxx, "Material Adverse Effect" shall mean a material adverse effect on
the assets, liabilities, results of operations, management, condition
(financial or other), properties or business of the relevant person.
(g) The Initial Purchasers shall have received on the Closing Date the
opinion of each of Xxxxx Xxxx & Xxxxxxxx and Xxxxx Xxxx, Esq. delivered to
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation in connection with the
Tender Offer and Consent Solicitation, each of which shall contain a statement
or be accompanied by a letter addressed to you and dated the Closing Date to the
effect that you may rely on such opinion to the same extent as if it were
originally addressed to you.
(h) On the Closing Date, you shall have received an opinion (satisfactory
to the Initial Purchasers and the Initial Purchasers' counsel), dated the
Closing Date, of XxXxxxxxx Will & Xxxxx, regulatory counsel for the Company,
substantially to the effect that:
The statements under the caption "Business - Government
Regulation" insofar as such statements constitute a summary of legal
matters, documents or proceedings referred to therein, fairly and
accurately present in all material respects the information set
forth therein with respect to such legal matters, documents and
proceedings.
32
The opinion of XxXxxxxxx Will & Xxxxx shall be rendered to you at
the request of the Company and shall so state therein.
(i) On the Closing Date, you shall have received an opinion (satisfactory
to the Underwriter and the Underwriter's counsel), dated the Closing Date, of
Xxxxxx & Xxxxxxx, patent and trademark counsel for the Company, to the effect
that:
1. The statements under the caption "Business - Patents,
Trademarks and Proprietary Rights," insofar as such statements
constitute a summary of legal matters, documents or proceedings
referred to therein, fairly and accurately present in all material
respects the information set forth therein with respect to such
legal matters, documents and proceedings.
2. The statements in the third, fourth and fifth sentences in
the first paragraph under the caption "Business - Patents,
Trademarks and Proprietary Rights" are true and correct in all
material respects.
3. Upon the consummation of the Merger, all of the
Intellectual Property of IMED will be owned by the Surviving
Company.
The opinion of Xxxxxx & Xxxxxxx shall be rendered to you at the
request of the Company and shall so state therein.
(j) You shall have received on the Closing Date from the opinion of each
Xxxxx Xxxx & Xxxxxxxx and Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx delivered
in connection with the Merger Agreement, each of which shall contain a statement
or be accompanied by a letter addressed to you and dated the Closing Date to the
effect that you may rely on such opinion to the same extent as if it were
originally addressed to you.
(k) You shall have received an opinion, dated the Closing Date, of Xxxxxx
& Xxxxxxx, counsel to the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(l) On the Closing Date, you shall have received an opinion (satisfactory
to the Initial Purchasers and the Initial Purchasers' counsel), dated the
Closing Date, of Xxxxxxxxx X. Xxxxx, Esq., General Counsel of the Company,
substantially to the effect that:
To the knowledge of such counsel, neither IMED or any of its
subsidiaries is (A) in violation of its respective charter or bylaws
or (B) in default in the performance of any term, provision,
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument
to which IMED or any of its subsidiaries is a party or by which any
of them is bound, or to which any of the property or assets of IMED
or any of its subsidiaries is subject, except for such defaults as
would not, individually or in the aggregate, have a Material Adverse
Effect on IMED.
(m) At the time this Agreement is executed and at the Closing Date the
Initial Purchasers shall have received letters from Price Waterhouse, L.L.P. and
Ernst & Young, L.L.P., independent public accountants, dated as of the date of
the Agreement and as of the Closing Date, a customary
33
comfort letter addressed to the Initial Purchasers and in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers,
with respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(n) IMED, the Initial Guarantor and the Trustee shall have entered into
the Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(o) IMED, the Initial Guarantor shall have entered into the Registration
Rights Agreement for the benefit of the Initial Purchasers and the benefit of
other Purchasers, and each of the Initial Purchasers shall have received an
original, duly executed by IMED and the Initial Guarantor.
(p) On the Closing Date, the Initial Purchasers shall have received
evidence satisfactory to the Initial Purchasers that the indebtedness under the
IMED Credit Facility, the IVAC Credit Facility and the Junior Subordinated Notes
have been repaid in full.
(q) IMED shall have received no less than $20.0 million of proceeds from
the Capital Contribution and the Initial Purchasers shall have received evidence
satisfactory to the Initial Purchasers of the receipt thereof by IMED.
(r) IMED shall have entered into the New Credit Facility (the form and
substance of which shall be reasonably acceptable to the Initial Purchasers) and
the Initial Purchasers shall have received counterparts, conformed as executed,
thereof and of all other documents and agreements entered into in connection
therewith.
(s) Each condition to the closing contemplated by the New Credit Facility
(other than the issuance and sale of the Series A Notes pursuant hereto) shall
have been satisfied or waived. There shall exist at and as of the Closing Date
(after giving effect to the transactions contemplated by this Agreement and the
Merger Agreement) no conditions that would constitute a default (or an event
that with notice or the lapse of time, or both, would constitute a default)
under the New Credit Facility. On the Closing Date, the closing under the New
Credit Facility shall have been consummated on terms that conform in all
material respects to the description thereof in the Offering Memorandum and the
Initial Purchasers shall have received evidence satisfactory to the Initial
Purchasers of the consummation thereof.
(t) Each condition to the closing contemplated by the Merger Agreement
(other than the issuance and sale of the Series A Notes pursuant hereto and the
closing under the New Credit Facility) shall have been satisfied or waived.
There shall exist at and as of the Closing Date (after giving effect to the
transactions contemplated by this Agreement and the New Credit Facility) no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Merger Agreement.
On the Closing Date, the Merger shall have been consummated on terms that
conform in all material respects to the description thereof in the Offering
Memorandum and the Initial Purchasers shall have received evidence satisfactory
to the Initial Purchasers of the consummation thereof. The Company shall deliver
to the Initial Purchasers copies of all of filings made with any governmental
entity (including, without limitation, the United States Patent and Trademark
Office and the United States Copyright Office) in order to effect the Secondary
Mergers, as certified by an appropriate official thereof, within a reasonable
period of time following the Closing Date. The Company shall deliver to the
Initial Purchasers copies of all of the certificates of merger required under
Delaware law to be made in order to effect each of the Initial Merger and the
Secondary Mergers, as certified by the Secretary of State of the State of
Delaware, within a reasonable period of time following the Closing Date.
34
(u) On the Closing Date, the Initial Purchasers shall have received a
solvency opinion, in the form contemplated by the New Credit Facility, by an
independent third party addressed to the Trustee among others and reasonably
satisfactory to you as to the solvency of the Surviving Company and its
subsidiaries following the consummation of the transactions contemplated herein
and by the Merger Agreement.
(v) On the Closing Date, all of the outstanding Existing Senior Notes
shall have been purchased pursuant to the Tender Offer and Consent Solicitation.
(w) On the Closing Date, the Surviving Company and Advanced Medical shall
have entered into the Tax Sharing Agreement and the Initial Purchasers shall
have received counterparts, conformed as executed, thereof.
(x) On the Closing Date, each of the Surviving Company and the Second
Guarantor shall have entered into the Purchase Assumption and the Registration
Rights Assumption, and each of the Initial Purchasers shall have received an
original, duly executed by each of the Surviving Company and the Second
Guarantor. On the Closing Date, the Surviving Company and the Trustee shall have
entered into the Note Assumption and the Initial Purchasers shall have received
counterparts, conformed as execute, thereof. On the Closing Date, the Second
Guarantor and the Trustee shall have entered into the Supplemental Indenture and
the Initial Purchasers shall have received counterparts, conformed as executed,
thereof.
(y) Xxxxxx & Xxxxxxx shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably require
for the purpose of enabling them to review or pass upon the matters referred to
in this Section 9 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations, warranties
or conditions herein contained.
(z) Prior to the Closing Date, the Company shall have furnished to the
Initial Purchasers such further information, certificates and documents as the
Initial Purchasers may reasonably request.
(aa) On or before the Closing Date, the Initial Purchasers shall have
received copies of all filings made with the United States Patent and Trademark
Office and the United States Copyright Office in connection with the transfer
from Advanced Medical to IMED of the Intellectual Property that was the subject
of the License Agreement, dated April 2, 1990, between Advanced Medical and
IMED.
All opinions, certificates, letters and other documents required by
this Section 9 to be delivered by the Company will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to the Initial Purchasers. The Company will furnish the Initial
Purchasers with such conformed copies of such opinions, certificates,
letters and other documents as the Initial Purchasers shall reasonably
request.
10. Defaults. If on the Closing Date, any Initial Purchaser shall fail or
refuse to purchase the Series A Notes that it has agreed to purchase hereunder
on such date, and the aggregate principal amount of such Series A Notes that
such defaulting Initial Purchaser agreed but failed or refused to purchase does
not exceed 10% of the total principal amount of such Series A Notes that all of
the Initial Purchasers are obligated to purchase on such Closing Date, the
non-defaulting Initial Purchaser(s) shall be obligated to purchase the amount of
the Series A Notes that such defaulting Initial Purchaser agreed but failed or
refused to purchase on such date in proportion to the respective proportions
that the principal amount of Series A Notes set forth opposite their respective
name(s) in Schedule A hereto bear to the aggregate
35
principal amount of Series A Notes set forth opposite the names of the
non-defaulting Initial Purchaser(s). If, on the Closing Date, any of the Initial
Purchasers shall fail or refuse to purchase Series A Notes in an aggregate
principal amount that exceeds 10% of such total principal amount of the Series A
Notes and arrangements satisfactory to the other Initial Purchaser(s) and IMED
for the purchase of such Series A Notes are not made within 48 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchaser(s) or IMED, except as otherwise provided in
Section 11 hereof. In any such case that does not result in termination of this
Agreement, the Initial Purchasers or IMED may postpone the Closing Date for not
longer than seven days, in order that the required changes, if any, in any
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve a defaulting Initial Purchaser from liability in respect of
any default by any such Initial Purchaser under this Agreement.
11. Effective Date of Agreement and Termination.
(a) This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
(b) This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by notice to IMED if any of the
following has occurred: (i) subsequent to the date of this Agreement,
there has been any material adverse change, or any development involving a
prospective material adverse change, in the assets, properties, business,
results of operations, condition (financial or otherwise) or prospects,
whether or not arising in the ordinary course of business, of IMED and its
subsidiaries, taken as a whole, or IVAC Holdings and its subsidiaries,
taken as a whole that, in the judgment of DLJ, materially impairs the
investment quality of the Series A Notes; (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis or
material adverse change in the financial markets of the United States or
elsewhere, or any other substantial national or international calamity or
emergency, if the effect of such outbreak, escalation, calamity, crisis or
emergency would, in the judgment of any Initial Purchaser, make it
impracticable or inadvisable to market the Series A Notes or to enforce
contracts for the sale of the Series A Notes; (iii) any suspension or
limitation of trading generally in securities on the New York Stock
Exchange, the American Stock Exchange or in the over-the-counter markets
or any setting of minimum prices for trading on such exchange or markets;
(iv) any declaration of a general banking moratorium by either federal or
New York authorities; (v) the taking of any action by any federal, state
or local government or agency in respect of its monetary or fiscal affairs
that, in the judgment of any Initial Purchaser, has a material adverse
effect on the financial markets in the United States and would, in the
judgment of any Initial Purchaser, make it impracticable or inadvisable to
market the Series A Notes or to enforce contracts for the sale of the
Series A Notes; (vi) the enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority that, in the judgment of any
Initial Purchaser materially and adversely affects the business or
operations of IMED, IVAC Holdings or any of their respective subsidiaries;
or (vii) any securities of the IMED, IVAC Holdings or any of their
respective subsidiaries shall have been downgraded or placed on any "watch
list" for possible downgrading by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), provided, however that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the
judgment of DLJ, make it impracticable or inadvisable to market the Series
A Notes or to enforce contracts for the sale of the Series A Notes or
materially impair the investment quality of the Series A Notes.
36
(c) The indemnities and contribution provisions and other
agreements, representations and warranties of the Company and the
Guaranteeing Subsidiaries, their respective officers and directors and of
the Initial Purchasers set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and shall survive
delivery of and payment for the Series A Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by or on
behalf of the Initial Purchasers or by or on behalf of IMED, IVAC
Holdings, the Surviving Company, their respective officers or directors or
any controlling person of IMED, IVAC Holdings or the Surviving Company,
(ii) acceptance of the Series A Notes and payment for them hereunder and
(iii) termination of this Agreement.
(d) If this Agreement shall be terminated by the Initial Purchasers
pursuant to paragraph (b) of this Section 11 or because of the failure or
refusal on the part of IMED to comply with the terms or to fulfill any of
the conditions of this Agreement, IMED agrees to reimburse the Initial
Purchasers for all out-of-pocket expenses (including, without limitation,
the fees and disbursements of counsel) incurred by the Initial Purchasers.
Notwithstanding any termination of this Agreement, IMED shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(f)
hereof.
12. Notices. Notices given pursuant to any provision of this Agreement
shall be addressed as follows:
(a) if to the Company, such notice shall be in writing addressed to
the Company or in care at its office as follows: (i) prior to closing to:
IMED Corporation
0000 Xxxxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx
Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(ii) after the closing to:
IVAC Holdings
00000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx
Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
37
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) if to any of the Initial Purchasers, such notice shall be in
writing addressed to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
at its office as follows:
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx XxXxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Gay Xxxxxxx, Esq.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
14. 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 other persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among IMED, the Initial Guarantor and the
Initial Purchasers.
[signature pages follows]
38
Very truly yours,
IMED CORPORATION
By: /s/ Xxxxxx X. Picower
------------------------------
Name: Xxxxxx X. Picower
Title: Chairman of the Board
IMED INTERNATIONAL TRADING CORP.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name:Xxxxxx X. Xxxx
Title: President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
BT SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:_________________________________
Name:
Title:
PARIBAS CORPORATION
By:_________________________________
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BT SECURITIES CORPORATION
By: /s/ Art Penn
------------------------------------
Name: Art Penn
Title: Managing Director
BEAR, XXXXXXX & CO. INC.
By:_________________________________
Name:
Title:
PARIBAS CORPORATION
By:_________________________________
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BT SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Managing Director
PARIBAS CORPORATION
By:_________________________________
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BT SECURITIES CORPORATION
By:_________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:_________________________________
Name:
Title:
PARIBAS CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
SCHEDULE A
Initial Purchaser Amount
----------------- ------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation $114,000,000
BT Securities Corporation 47,500,000
Bear, Xxxxxxx & Co. Inc. 28,500,000
Paribas Corporation 10,000,000
------------
Total $200,000,000
S-1
SCHEDULE B
Subsidiaries of IMED
IMED Merger Sub, Inc.
IMED International Trading Corp.
IMED Ltd. U.K. Corporation
IMED Pty. Ltd. Australia
IMED Canada Ltd.
IMED Holding Co. Ltd.
IMED Ireland
S-2
SCHEDULE C
Subsidiaries of Surviving Company
IVAC Foreign Sales Corp.
River Medical, Inc.
IVAC Canada, Inc.
IVAC-Medical, B.V.
IVAC Scandanavia AB
IVAC Industries Limited
IVAC UK Limited
IVAC France S.A.
IVAC Medizintechnik GmbH
Electromedicina IVAC, S.L.
IMED International Trading Corp.
IMED Ltd.
IMED Pty. Ltd.
IMED Canada Ltd.
IMED Holding Co. Ltd.
IMED Ireland
S-3
SCHEDULE D
IMED Domestic Subsidiaries
IMED Merger, Sub. Inc.
IMED International Trading Corp.
S-4
SCHEDULE E
Surviving Company Domestic Subsidiaries
IVAC Overseas Holdings, Inc.
IMED International Trading Corp.
S-5
EXHIBIT A
Form of Registration Rights Agreement
A-1
