Exhibit 1.1
BAUSCH & LOMB INCORPORATED
$150,000,000
6.95% Senior Notes Due 2007
Underwriting Agreement
November 18, 2002
XXXXXXX XXXXX XXXXXX INC.
As Representative of the several
Underwriters named in Schedule I
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bausch & Lomb Incorporated (the "Company"), a corporation organized
under the laws of the State of New York , proposes to issue and sell to the
several underwriters named in Schedule I hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), $150,000,000 principal
amount of its 6.95% Senior Notes Due 2007 (the "Securities"), to be issued
pursuant to the indenture, dated as of September 1, 1991, between the Company
and Citibank, N.A., as trustee (the "Trustee"), as amended by Supplemental
Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2 dated July 29,
1998 and proposed to be amended by Supplemental Indenture No. 3 to be dated the
Closing Date (as defined herein) (collectively, the "Indenture") providing for
the issuance of debt securities, among other things. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-
90468) on Form S-3, including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission a final prospectus in
accordance with Rule 424(b). The Company has included in such registration
statement, as amended at the Effective Date, all information required by
the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain such required
information, and, except to the extent the Representative shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and when the
Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Prospectus, including any supplements thereto, will, comply in
all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder. On the Effective Date and at the Closing Date, the Registration
Statement did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. On the
Effective Date and on the Closing Date the Indenture did or will comply in
all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder. On the date of any filing pursuant
to Rule 424(b), the Prospectus did not, and on the Closing Date, the
Prospectus, including any supplement thereto, will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto). The
statistical and market-related data included in the Prospectus are based on
or derived from sources that the Company reasonably believes to be reliable
and accurate.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any further documents so filed and incorporated
or deemed to be incorporated by reference in the Registration Statement and
the Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and when read
together with the other information in the
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Registration Statement and the Prospectus, as the case may be, at the time
issued did not, and as of the Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest financial statements of the Company included
or incorporated by reference in the Prospectus, any material loss or
interference with its business that is material to the business of the
Company and its subsidiaries taken as a whole from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus (exclusive of any amendment or
supplement thereto) and, since the respective dates as of which information
is given in the Prospectus, there has not been any material change in the
capital stock or any material increase in the consolidated short-term or
long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, whether or
not in the ordinary course of business (a "Material Adverse Change"),
otherwise than as set forth or contemplated in the Prospectus (exclusive of
any amendment or supplement thereto after the date hereof).
(e) The Company (i) is a corporation duly organized, validly existing
and subsisting under the laws of the State of New York, (ii) has the
requisite corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, (iii)
is duly qualified as a foreign corporation to transact business and is in
good standing (with respect to the jurisdictions which recognize such
concept) in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to qualify or to be in good
standing would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect").
(f) Each subsidiary of the Company is a corporation, partnership,
limited liability company or business trust duly incorporated or organized,
validly existing and in good standing (to the extent the jurisdiction of
its incorporation recognizes such concept) under the laws of the
jurisdiction of its incorporation or organization, with the requisite power
and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus, except where the failure to be so
organized or to have such power and authority would not result in a
Material Adverse Effect; each such subsidiary is duly qualified as a
foreign corporation or organization to transact business and is in good
standing (with respect to the jurisdictions which recognize such concept)
in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to qualify or to be in good standing would not
result in a Material Adverse Effect.
(g) The Company has outstanding equity capitalization as set forth in
the Prospectus (except for subsequent issuances, if any, pursuant to
employee benefit plans
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or agreements or pursuant to the exercise of convertible securities or
options), and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable. Except as otherwise disclosed in the Prospectus, all of the
issued and outstanding shares of capital stock or other ownership interests
of each subsidiary of the Company which constitutes a "significant
subsidiary" as defined in Item 1-02(w) of Regulation S-X (each a
"Significant Subsidiary") are owned by the Company directly or through
subsidiaries (except for shares necessary to qualify directors or to
maintain any minimum number of shareholders required by law), free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity except as described in the Prospectus and except for such
security interests, mortgages, pledges, liens, encumbrances, claims or
equities that are immaterial to the Company and its subsidiaries taken as a
whole.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Securities have been duly authorized, and, when delivered
pursuant to this Underwriting Agreement, will have been duly executed,
issued and delivered and (assuming the due authentication thereof by the
Trustee) will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and will be entitled to
the benefits provided by the Indenture.
(j) The Indenture has been duly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered by the Company and
will constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles; the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(k) The Indenture conforms, and the Securities will conform, in all
material respects, to the descriptions thereof contained in the Prospectus.
(l) The issuance and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and the consummation of the transactions herein and therein
contemplated, will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the conflict, breach or
violation of which would have a Material Adverse Effect, or affect the
validity of the Securities or the legal authority of the Company to comply
with the terms of the Securities, the Indenture
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or this Agreement, (ii) result in any violation of the provisions of the
organizational documents of the Company or any of its Significant
Subsidiaries or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their properties, the violation of which would have a Material
Adverse Effect or affect the validity of the Securities or the legal
authority of the Company to comply with the Securities, the Indenture or
this Agreement.
(m) No consent, approval, authorization, order, registration, filing or
qualification of or with any court or governmental agency or body, domestic
or foreign, having jurisdiction over the Company is required for the
issuance and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement or the Indenture,
except for (i) such consents, approvals, authorizations, orders,
registrations, filings or qualifications which shall have been obtained or
made prior to the Closing Date, (ii) as may be required by the securities
or blue sky laws of the various states, the Securities Act, the Trust
Indenture Act and the securities laws of any jurisdiction outside the
United States in which the Securities are offered or (iii) such consents,
approvals, authorizations, orders, registrations, filings and/or
qualifications which, if not obtained, would not have a Material Adverse
Effect or affect the validity of the Securities or the legal authority of
the Company to comply with the Securities, the, the Indenture or this
Agreement.
(n) Other than as set forth in the Prospectus (i) there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which if determined adversely to the
Company or such subsidiary, would individually or in the aggregate, have a
Material Adverse Effect or which would materially and adversely affect the
consummation of the transactions contemplated under this Agreement or the
Indenture or the performance by the Company of its obligations hereunder or
thereunder and (ii) to the Company's knowledge no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(o) PricewaterhouseCoopers LLP, who have certified the financial
statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Prospectus, are independent public
accountants with respect to the Company as required by the Securities Act
and the rules and regulations of the Commission thereunder.
(p) The consolidated financial statements and schedules of the Company
and its consolidated subsidiaries included or incorporated by reference
into the Prospectus, present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the
dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and have been prepared in
conformity with generally accepted accounting principles in the United
States, applied on a consistent basis throughout the periods involved
(except as otherwise noted therein); the selected financial data set forth
under the caption "Selected Financial
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Information" in the Prospectus fairly present, on the basis stated in the
Prospectus, the information included therein.
(q) In the ordinary course of its business, the Company periodically
reviews the effect of applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") on the business, operations and
properties of the Company and its subsidiaries. In the course of that
review, the Company uses reasonable business efforts to identify any
processes or sites which are reasonably likely to require any capital or
operating expenditures for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval; and to
evaluate associated costs and liabilities with respect to such actions, any
related constraints on operating activities, and any potential liabilities
to third parties. On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect, except as
set forth in the Prospectus.
(r) Other than as set forth in the Prospectus: (i) the Company and its
subsidiaries take commercially reasonable steps to determine that they own
or have the right to use all patents, trademarks, service marks, trade
names, copyrights, trade secrets and confidential information
("Intellectual Property") used in the business of the Company and its
subsidiaries as described in the Prospectus and have taken all commercially
reasonable steps to secure assignments of such Intellectual Property from
their respective employees and contractors, except where the failure to
own, have the right to use or take such steps to secure assignments of such
Intellectual Property would not reasonably be expected to have a Material
Adverse Effect; (ii) to the Company's knowledge, none of the technology
employed by the Company or its subsidiaries has been obtained or is being
used by the Company or its subsidiaries in violation of any contractual or
fiduciary obligation binding on the Company, its subsidiaries, or any of
their respective directors or executive officers or any of their respective
employees or consultants, except for such violations that would not
reasonably be expected to have a Material Adverse Effect; and (iii) the
Company and its subsidiaries have taken and will maintain reasonable
measures to prevent the unauthorized dissemination or publication of their
own confidential information, except where the failure to take or maintain
such measures would not reasonably be expected to have a Material Adverse
Effect. Except as set forth in the Prospectus, to the Company's knowledge,
neither the Company nor any of its subsidiaries has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with any
Intellectual Property rights of third parties. Except as set forth in the
Prospectus, the Company and its subsidiaries have not received any written
charge, complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation of the Intellectual Property
of any third party (including any claim that the Company or any of its
subsidiaries must license or refrain from using any intellectual property
rights of any third party) which, if the subject of any decision, ruling or
finding adverse to the ability of the Company to use such rights, the
Company would, individually or in the aggregate, have a Material Adverse
Effect.
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(s) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(t) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(u) Any certificate signed by any officer of the Company and delivered
pursuant to this Agreement to the Representative or counsel for the
Underwriters in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
hereby agrees to sell to the Underwriters, and the Underwriters, upon the basis
of the representations and warranties of the Company herein contained, but
subject to the conditions hereinafter stated, agree severally and not jointly to
purchase from the Company, the aggregate principal amount of Securities set
forth opposite their respective names on Schedule I hereto, at a purchase price
of 98.978% of the principal amount of the Securities plus accrued interest, if
any, from November 21, 2002 to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on November 21, 2002, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representative shall designate; provided, however, that such date
and time may be postponed by agreement between the Representative and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representative for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representative of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representative shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public in a bona
fide public offering as set forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Registration Statement is, and at the Closing Date will be,
effective. Prior to the termination of the offering of the Securities,
whether upon the Closing Date or upon the termination of this Agreement,
the Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b)
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Registration Statement unless the Company has furnished to the
Representative a copy for review by the Representative prior to filing and
will not file any such proposed amendment or supplement to which the
Representative reasonably objects unless the Company is advised by its
counsel that such amendment or supplement is required to be filed in order
for the Company to be in compliance with applicable laws and regulations or
this Agreement. Subject to the foregoing sentence, the Company will cause
the Prospectus, properly completed, and any supplement thereto, to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to
the Representative of such timely filing. The Company will promptly advise
the Representative (1) when the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b) or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (4) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (5) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Representative of such event; (2) prepare and
file with the Commission, subject to the second sentence of paragraph (a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemented Prospectus to the Underwriters in such quantities as the
Underwriters may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representative an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or
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dealer may be required by the Act, as many copies of each Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Representative may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities in any jurisdiction
where it is not now so subject .
(f) The Company will not from the date hereof through the Closing Date,
without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell
or contract to sell, or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company), directly or indirectly, or announce the offering
of, any debt securities issued or guaranteed by the Company other than the
Securities.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Registration Statement is, and as of the Closing Date will be,
effective; and the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused Xxxxxx X. Xxxxxx,
Senior Vice President and General Counsel for the Company, to have
furnished to the Representative his opinion, dated the Closing Date and
addressed to the Representative, to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation subsisting under the laws of the State of New York,
with power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus;
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(ii) the Company is duly qualified as a foreign corporation to
transact business and is in good standing (with respect to the
jurisdictions which recognize such concept) in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to qualify or to be in good standing would not have a
Material Adverse Effect;
(iii) each Significant Subsidiary is a corporation, partnership,
limited liability company or business trust duly incorporated or
organized, validly existing and in good standing (to the extent the
jurisdiction of its incorporation recognizes such concept) under the
laws of the jurisdiction of its incorporation or organization, with the
requisite power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; each
Significant Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing (with respect to the
jurisdictions which recognize such concept) in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to qualify or to be in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the
Prospectus all of the issued and outstanding capital stock or other
ownership interests of each Significant Subsidiary of the Company has
been duly authorized and validly issued, is fully paid and
non-assessable and (except for shares necessary to qualify directors or
to maintain any minimum number of shareholders required by law and/or
shares of those subsidiaries for which the Company does not own all of
the outstanding capital stock as described on an exhibit to the
opinion) are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity except as described in the Prospectus and
except for such security interests, mortgages, pledges, liens,
encumbrances, claims or equities that are immaterial to the Company and
its subsidiaries taken as a whole;
(iv) the Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Securities have been duly authorized, executed and
delivered and (assuming the due authentication thereof by the Trustee)
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and will be entitled
to the benefits provided by the Indenture;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability
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relating to or affecting the enforcement of creditors' rights and to
general equity principles; and the Indenture has been qualified under
the Trust Indenture Act;
(vii) the Indenture and the Securities conform in all material
respects to the descriptions thereof contained in the Prospectus;
(viii) the issuance and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and the consummation of the transactions
herein and therein contemplated, will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Company or any of its Significant Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, which would have a Material Adverse Effect or affect the
validity of the Securities or the legal authority of the Company to
comply with the terms of the Securities, the Indenture or this
Agreement, (ii) result in any violation of the provisions of the
organizational documents of the Company or any of its Significant
Subsidiaries or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties which would have a Material
Adverse Effect or affect the validity of the Securities or the legal
authority of the Company to comply with the Securities, the Indenture
or this Agreement;
(ix) no consent, approval, authorization, order, registration,
filing or qualification of or with any court or governmental agency or
body, domestic or foreign, having jurisdiction over the Company is
required for the issuance and sale of the Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement or the Indenture, except for (i) such consents,
approvals, authorizations, orders, registrations, filings or
qualifications which shall have been obtained or made prior to the
Closing Date, (ii) as may be required by the securities or blue sky
laws of the various states, the Securities Act, the Trust Indenture Act
and the securities laws of any jurisdiction outside the United States
in which the Securities are offered or (iii) such consents, approvals,
authorizations, orders, registrations, filings and/or qualifications
which, if not obtained, would not have a Material Adverse Effect or
affect the validity of the Securities or the legal authority of the
Company to comply with the Securities, the, the Indenture or this
Agreement;
(x) the Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity
11
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act;
(xi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required;
(xii) the documents incorporated by reference in the Registration
Statement and the Prospectus, other than the financial statements and
the other financial information contained or incorporated by reference
therein or omitted therefrom, or the information in the Form T-1
forming a part of the Registration Statement, as to which such counsel
need express no opinion, when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; and
(xiii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the
Prospectus, other than the financial statements and the other financial
information contained or incorporated by reference therein or omitted
therefrom, or the information in the Form T-1 forming a part of the
Registration Statement, as to which such counsel need express no
opinion, comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder.
In addition to giving the opinions set forth above, such General
Counsel shall state that he has no reason to believe (A) that any of the
documents incorporated by reference in the Registration Statement and the
Prospectus, other than the financial statements and the other financial
information contained or incorporated by reference therein or omitted therefrom,
or the information in the Form T-1 forming a part of the Registration Statement,
as to which such counsel need express no opinion, when they were so filed,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such documents were so filed, not
misleading, or (B) that on the Effective Date or on the Closing Date the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of its date
or on the Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements
12
therein, in the light of the circumstances under which they were made, not
misleading, in each case, other than the financial statements and the other
financial information contained or incorporated by reference therein or omitted
therefrom, or the information in the Form T-1 forming a part of the Registration
Statement, as to which such counsel need express no opinion.
In rendering such opinion, such counsel may rely: (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the federal laws of the United States, to the extent such counsel
deems proper and specifies in such opinion, upon the opinion of other counsel of
good standing whom such counsel believes to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to the extent
such counsel deems proper, on the certificates of responsible officers of the
Company and public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representative shall have received from Mayer, Brown, Xxxx &
Maw, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representative, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board and the
Chief Financial Officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto), there has been no material adverse change, or
any development involving a prospective material adverse change, in or
affecting the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, otherwise than as
set forth or contemplated in the Prospectus (exclusive of any amendment
or supplement thereto).
13
(e) The Company shall have requested and caused PricewaterhouseCoopers
LLP to have furnished to the Representative, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance reasonably satisfactory to
the Representative and PricewaterhouseCoopers LLP, of the type described in
AICPA Statement on Auditing Standards No. 72.
(f) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, the Company shall have furnished to the
Representative such further information, certificates and documents as the
Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Mayer, Brown, Xxxx & Maw, counsel for the Underwriters, at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
14
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representative specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that (i) the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and (ii) under the heading
"Underwriting," (A) the sentences related to concessions and reallowances
and (B) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel
15
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriters severally shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of
the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
16
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representative shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended
or limited or minimum prices shall have been established on such Exchange or
Market, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representative,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and
17
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Barney Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Bausch & Lomb Incorporated, attention Treasurer (fax no.: (000) 000-0000, and
confirmed to it at Bausch & Lomb Incorporated, Xxx Xxxxxx & Xxxx Xxxxx,
Xxxxxxxxx, XX 00000, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
18
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
"Rule 424" and "Rule 462" refer to such rules under the Act.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BAUSCH & LOMB INCORPORATED
By:___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
By:_________________________________
Name:
Title:
For itself and as representative
of the other several Underwriters
named in Schedule I to the
foregoing Agreement.
20
SCHEDULE I
Principal Amount
of Securities to
Underwriters be Purchased
Xxxxxxx Xxxxx Barney Inc............................. $ 82,500,000
Banc of America Securities LLC....................... 22,500,000
Fleet Securities, Inc................................ 22,500,000
X.X. Xxxxxx Securities Inc........................... 22,500,000
-------------
Total....................................... $ 150,000,000
=============
I-1
