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$200,000,000
XXXXXX XXXXXXXX, INC.
XXXXXX XXXXXXXX PUBLIC
LIMITED COMPANY
12(epsilon)% Senior Notes Due 2008
PURCHASE AGREEMENT
February 11, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxxxx Xxxxxxxx, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston Corporation ("CSFBC") and the
several other initial purchasers named in Schedule A hereto (the "Purchasers")
U.S.$200,000,000 principal amount of its 12(epsilon)% Senior Notes due 2008
("Offered Securities") to be issued under an indenture, dated as of February 15,
2000 (the "Indenture"), among the Company, Xxxxxx Xxxxxxxx Public Limited
Company, the owner of 100% of the capital stock of the Company (the
"Guarantor"), and The Bank of New York, as Trustee. The obligations of the
Issuer under the Indenture and the Offered Securities will be fully and
unconditionally guaranteed on a senior basis by the Guarantor (the "Guaranty").
The United States Securities Act of 1933 is herein referred to as the
"Securities Act."
The Company has entered into an Asset Purchase Agreement dated as of
January 26, 2000 (the "BMS Agreement") to acquire Estrace(R) vaginal cream,
Ovcon(R) 35 oral contraceptive and Ovcon(R) 50 oral contraceptive (collectively,
the "Product Lines") from Xxxxxxx-Xxxxx Squibb Company ("BMS") for total
consideration of $180 million (the "Acquisition"). In connection with
Acquisition, the Company and BMS have entered into two Transitional Services and
Supply Agreements, each dated as of January 26, 2000. with respect to the
Product Lines (collectively the "Supply Agreements"). The Acquisition is subject
to the satisfaction or waiver of certain conditions and, accordingly, there can
be no assurance that the Acquisition will be completed on the terms and
conditions set forth in the BMS Agreement, or at all.
Each of the Company and the Guarantor hereby agrees with the several
Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantor. Each
of the Company and the Guarantor, jointly and severally, represents and warrants
to, and agrees with, the Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers
have been prepared by the Company. Such preliminary offering
circular (the "Preliminary Offering Circular") and offering circular
(the "Offering Circular"), as supplemented as of the date of this
Agreement, together with the documents listed in Schedule B hereto
and any other document approved by the Company or the Guarantor for
use in connection with the contemplated resale of the Offered
Securities are hereinafter collectively referred to as the "Offering
Document". On the date of this Agreement, the Offering Document
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does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser
through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein. it being understood and agreed that
the only such information is that described as such in Section 7(b)
hereof. Except as disclosed in the Offering Document, on the date of
this Agreement, the Guarantor's Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission (the
"Commission") and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Guarantor with
the Commission or sent to stockholders pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") do not 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. Such
documents, 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.
(b) The Company has been duly incorporated and is an existing
corporation under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as
described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to so qualify to be in good standing would
not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the condition (financial or
other), business, properties or results of operations of the
Guarantor and the Guarantor's subsidiaries taken as a whole
("Material Adverse Effect").
(c) The Guarantor has been duly incorporated and is an
existing public limited company under the laws of the Republic of
Ireland, with power and authority to own its properties and conduct
its business as described in the Offering Document; and the
Guarantor is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify to be in good
standing would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(d) The Company has no subsidiaries. Each subsidiary of the
Guarantor (other than the Company) has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Offering Document; and each subsidiary of the
Guarantor is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify to be in good
standing would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Guarantor,
including the Company, has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each
subsidiary (including the Company) owned by the Guarantor, directly
or through subsidiaries, is owned free from liens, encumbrances and
defects. Schedule C sets forth a true, correct and complete list of
all subsidiaries of the Guarantor.
(e) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been
duly executed and delivered, such Offered Securities will have been
duly executed, authenticated, issued and delivered and will conform
to the description thereof contained in the Offering Document and
the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company,
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enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) The Guaranty has been duly authorized; and when the
Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, the Guaranty will conform to the
description thereof contained in the Offering Document and the
Guaranty will constitute the valid and legally binding obligation of
the Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(g) The Registration Rights Agreement dated the date hereof,
among the Company, the Guarantor and the Purchasers (the
"Registration Rights Agreement"), conforms to the description
thereof contained in the Offering Document and the Registration
Rights Agreement, when the Offered Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, will constitute
the valid and legally binding obligation of the Company and the
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or the
Guarantor on the one hand and any person on the other hand that
would give rise to a valid claim against the Company, the Guarantor
or the Purchasers for a brokerage commission, finder's fee or other
like payment with respect to the transactions contemplated by this
Agreement or the Registration Rights Agreement.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement (including the issuance of the Offered Securities and
the making of the Guaranty) and the Registration Rights Agreement in
connection with the issuance and sale of the Offered Securities by
the Company except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement (each as defined in the Registration Rights Agreement)
effective.
(j) Except as disclosed in the Offering Document, under
current laws and regulations of the Republic of Ireland and any
political subdivision thereof, all interest, principal, premium, if
any, and other payments due or made on the Guaranty may be paid by
the Guarantor to the holder thereof in United States dollars or
Irish pounds that may be converted into foreign currency and freely
transferred out of the Republic of Ireland and all such payments
made to holders thereof who are non-residents of the Republic of
Ireland will not be subject to income, withholding or other taxes
under laws and regulations of the Republic of Ireland or any
political subdivision or taxing authority thereof or therein and
will otherwise be free and clear of any other tax, duty, withholding
or deduction in the Republic of Ireland or any political subdivision
or taxing authority thereof or therein and without the necessity of
obtaining any governmental authorization in Ireland or any political
subdivision or taxing authority thereof or therein.
(k) The execution, delivery and performance of the Indenture,
the Guaranty, this Agreement and the Registration Rights Agreement,
and the issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, the Guarantor or any
subsidiary of the Guarantor or any of their properties, or any
agreement or instrument to which the Company, the Guarantor or any
such
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subsidiary is a party or by which the Company, the Guarantor or any
such subsidiary is bound or to which any of the properties of the
Company, the Guarantor or any such subsidiary is subject, or the
charter or by-laws of the Company, the Guarantor or any such
subsidiary. The Company has full power and authority to authorize,
issue and sell the Offered Securities and the Guarantor has full
power and authority to guarantee the obligations of the Company
under the Indenture and the Offered Securities.
(l) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company and the
Guarantor.
(m) Except as disclosed in the Offering Document, the Company,
the Guarantor and the Guarantor's subsidiaries have good and
marketable title to all real properties and all other properties and
assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Document, the Company, the
Guarantor and the Guarantor's subsidiaries hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to
be made thereof by them.
(n) The Company, the Guarantor and the Guarantor's
subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and to be operated by them
immediately following the Acquisition and have not received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely to the Company, the Guarantor or any of the Guarantor's
subsidiaries, would individually or in the aggregate, have a
Material Adverse Effect.
(o) No labor dispute with the employees of the Company, the
Guarantor or any subsidiary of the Guarantor exists or, to the
knowledge of the Company or the Guarantor, is imminent that might
have a Material Adverse Effect.
(p) The Company, the Guarantor and the Guarantor's
subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement
of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company, the Guarantor or any of the Guarantor's subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(q) None of the Company, the Guarantor or any of the
Guarantor's subsidiaries is (i) in violation of its charter or
statute as applicable, or by-laws (or other similar organizational
documents), (ii) in default in the performance or observation of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it
is a party or by which any of them may be bound, or to which any of
its property or assets is subject except for such defaults that
would not result in a Material Adverse Effect or (iii) in violation
of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company,
the Guarantor or any of its subsidiaries or any of their assets or
properties, except as disclosed in the Offering Document.
Specifically, and without limiting the foregoing, except as
disclosed in the Offering Document, none of the Company, the
Guarantor or any of the Guarantor's subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or
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toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and neither the Company
nor the Guarantor is aware of any pending investigation which might
lead to such a claim.
(r) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the
Company, the Guarantor or any of the Guarantor's subsidiaries or any
of their respective properties that, if determined adversely to the
Company, the Guarantor or any of the Guarantor's subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company and
the Guarantor to perform their respective obligations under the
Indenture, this Agreement, the Guaranty or the Registration Rights
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's or the Guarantor's
knowledge, contemplated.
(s) The financial statements of the Guarantor and its
consolidated subsidiaries included in the Offering Document present
fairly the financial position of the Guarantor and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, the special purpose historical
statements of net sales and product contribution of the Product
Lines included in the Offering Document present fairly the net sales
and product contribution of the Product Lines for the periods shown,
and, except as otherwise disclosed in the Offering Document, such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis; the assumptions used in preparing the
pro forma financial statements included in the Offering Document
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect
to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts; and to the best knowledge of
the Company and the Guarantor, there has been no material adverse
change in the net sales and product contribution of the Product
Lines for the period commencing October 1, 1999 through the date
hereof.
(t) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements of the Guarantor and
its consolidated subsidiaries included in the Offering Document
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company, the Guarantor and the Guarantor's
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company or
the Guarantor on any class of its capital stock.
(u) To the best knowledge of the Guarantor, except as
disclosed in the Offering Document, since the date of the latest
audited special purpose historical statements of net sales and
product contribution of the Product Lines included in the Offering
Document there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Product Lines.
(v) Neither the Company nor the Guarantor is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of
the United States Investment Company Act of 1940 (the "Investment
Company
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Act"); and neither the Company nor the Guarantor is and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Offering
Document, neither will be an "investment company" as defined in the
Investment Company Act.
(w) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities
are listed on any national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(x) Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 hereof, the
offer and sale of the Offered Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements
of the Securities Act by reason of Section 4(2) thereof and
Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(y) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United
States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Offered Securities or any
security of the same class or series as the Offered Securities or
(ii) has offered or will offer or sell the Offered Securities (A) in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S") under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Company, its affiliates
and any person acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S.
The Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
(z) The Guarantor is subject to Section 13 or 15(d) of the
Exchange Act.
(aa) The representations, warranties and agreements of the
Company set forth in the BMS Agreement and the Supply Agreements
and, to the best knowledge of the Company and the Guarantor after
due inquiry, the representations, warranties and agreements of BMS
set forth in the BMS Agreement and the Supply Agreements, are true
and correct as of the date hereof.
(bb) Except as disclosed in the Offering Document, upon the
completion of the Acquisition, the Company will have good and
marketable title to the Product Lines, in each case free from liens,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by it.
(cc) Upon the completion of the Acquisition, the Company will
own the intellectual property rights necessary to conduct the
business to be operated by them with respect to the Product Lines as
described in the Offering Document.
(dd) Each of KMPG LLP and KPMG, who have certified certain
financial statements of the Company, whose report is included in the
Offering Document and who have delivered the letter referred to in
Section 6(a) hereof, are independent public accountants as required
by the Securities Act and the Rules and Regulations (as defined in
Section 6(a) hereof) during the periods covered by the financial
statements on which they have reported contained in the Offering
Document.
(ee) The Company, the Guarantor and the Guarantor's
subsidiaries have filed all tax returns that are required to be
filed or have duly requested extensions thereof and have paid all
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taxes required to be paid by any of them and any related
assessments, fines or penalties, except for any such tax,
assessment, fine or penalty that is being contested in good faith
and by appropriate proceedings; and adequate charges, accruals and
reserves have been provided for in the financial statements referred
to in Section 2(a) above in respect of all taxes for all periods as
to which the tax liability of the Company, the Guarantor or any of
the Guarantor's subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities.
(ff) Each of the Company and the Guarantor maintain a system
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The
Company, the Guarantor and the Guarantor's subsidiaries have not
made, and, to the knowledge of the Company and the Guarantor, no
employee or agent of the Company, the Guarantor or any of the
Guarantor's subsidiaries has made, any payment of the Company's
fund, Guarantor's funds or any subsidiary's funds or received or
retained any funds (i) in violation of the Foreign Corrupt
Practices Act, as amended, or (ii) in violation of any other
applicable law, regulation or rule.
(gg) No forward-looking statement (within the meaning of
Section 27A of the Exchange Act) contained in the Offering Document
has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(hh) Each of the Company and the Guarantor is, and immediately
after the completion of the Acquisition and the issuance of Notes
will be, Solvent. As used herein, "Solvent" means, on a particular
date, that on such date (A) the fair market value of the assets of
each of the Company and the Guarantor is greater than the total
amount of respective liabilities (including contingent liabilities)
of the Company and the Guarantor, (B) the present fair salable value
of the assets of each of the Company and the Guarantor is greater
than the amount that will be required to pay the probable
liabilities of the Company and the Guarantor on its debts as they
become absolute and matured, (C) each of the Company and Guarantor
is able to realize upon its assets and pay its debts and other
liabilities, including contingent obligations, as they mature and
(D) neither the Company nor the Guarantor has an unreasonably small
capital.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
the Offered Securities from the Company, at a purchase price of 95.168% of the
principal amount thereof plus accrued interest, if any, from February 15, 2000
to the Closing Date (as hereinafter defined).
The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in definitive
form (the "Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global Securities will be held only
in book-entry form through DTC, except in the limited circumstances described
in the Offering Document. Payment for the Offered Securities shall be made by
the Purchaser in federal (same day) funds by official check or checks or wire
transfer to an account at a bank acceptable to CSFBC drawn to the order of the
Company at the office of Xxxxxxxx & Xxxxx at 9:00 A.M. (New York time), on
February 15, 2000, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "Closing Date", against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of Xxxxxxxx &
Xxxxx at least 24 hours prior to the Closing Date.
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4. Representations by Purchasers; Resale by Purchaser. (a) Each Purchaser
severally represents and warrants to the Company that it is an "accredited
investor" within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities only in
accordance with Rule 903 or Rule 144A under the Securities Act
("Rule 144A"). Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect
to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S
and Rule 144A.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the
United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser
severally agrees, with respect to resales made in reliance on Rule
144A of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule
144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months
after the date of issue of the Offered Securities will not offer or
sell any Offered Securities to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) it has complied
and will comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it
in connection with the issue of the Offered Securities to a person
who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
5. Certain Agreements of the Company and the Guarantor. Each of the
Company and the Guarantor, jointly and severally, agrees with the several
Purchasers that:
(a) The Company or the Guarantor will advise CSFBC promptly of
any proposal to amend or supplement the Offering Document and will
not effect such amendment or supplementation without CSFBC's
consent. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers, any event occurs as a
result of which the Offering
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Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, the
Company or the Guarantor promptly will notify CSFBC of such event
and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company or the Guarantor will furnish to CSFBC copies
of any preliminary offering circular, the Offering Document and all
amendments and supplements to such documents, in each case as soon
as available and in such quantities as CSFBC requests, and the
Company or the Guarantor will furnish to CSFBC on the date hereof
three copies of the Offering Document signed by a duly authorized
officer of each of the Company and the Guarantor, one of which will
include the independent accountants' reports therein manually signed
by such independent accountants. At any time when the Guarantor is
not subject to Section 13 or 15(d) of the Exchange Act, the Company
or the Guarantor will promptly furnish or cause to be furnished to
CSFBC (and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company or the
Guarantor will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in
the United States and Canada as CSFBC designates and will continue
such qualifications in effect so long as required for the resale of
the Offered Securities by the Purchasers, provided that the Company
will not be required to qualify as a foreign corporation or to file
a general consent to service of process in any such state.
(d) While any Offered Securities are outstanding, the
Guarantor will furnish to CSFBC (and, upon request, to each of the
other Purchasers), (i) the information to be provided to the Trustee
for the Offered Securities pursuant to the Indenture and (ii) from
time to time, such other information concerning the Company or the
Guarantor as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the
Company or the Guarantor will, upon request, furnish to CSFBC, each
of the other Purchasers and any holder of Offered Securities a copy
of the restrictions on transfer applicable to the Offered
Securities.
(f) During the period of two years after the Closing Date, the
Company or the Guarantor will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Offered Securities that have been reacquired by
any of them.
(g) During the period of two years after the Closing Date,
neither the Company nor the Guarantor will be or become, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of
the Investment Company Act.
(h) The Company and the Guarantor will pay all expenses
incidental to the performance of their obligations under this
Agreement, the Indenture, the Guaranty and the Registration Rights
Agreement, including (i) the fees and expenses of the Trustee and
its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of
the Offered Securities and, as applicable, the Exchange Securities
(as defined in the Registration
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Rights Agreement), the preparation and printing of this Agreement,
the Registration Rights Agreement, the Guaranty, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable, the Exchange Securities; (iii) the cost of qualifying
the Offered Securities for trading in The Portal(SM) Market
("PORTAL") and any expenses incidental thereto; (iv) the cost of
any advertising approved by the Company in connection with the
issue of the Offered Securities, (v) for any expenses (including
fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange Securities
for sale under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and the printing of memoranda
relating thereto, (vi) for any fees charged by investment rating
agencies for the rating of the Offered Securities or the Exchange
Securities, (vii) for expenses incurred in distributing preliminary
offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers and (viii)
one-half of the fees and disbursements of Purchasers' counsel up to
a maximum of $250,000. The Company and the Guarantor will also pay
or reimburse the Purchasers (to the extent incurred by them) for all
travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of
the resale of their Offered Securities, none of the Company, the
Guarantor or any of the Guarantor's affiliates has or will, either
alone or with one or more other persons, bid for or purchase for any
account in which they or any of their affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither they nor any of their
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of,
the Offered Securities.
(j) The Guarantor will indemnify and hold harmless the
Purchasers against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the creation of the
Guaranty and on the execution and delivery of this Agreement. All
payments to be made by the Guarantor hereunder shall be made without
withholding or deduction for or on account of any present or future
taxes, duties or governmental charges whatsoever unless the
Guarantor is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the Guarantor shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts
that would have been received if no withholding or deduction had
been made.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantor herein, to the accuracy of the statements of officers
of the Company and the Guarantor made pursuant to the provisions hereof, to the
performance by the Company and the Guarantor of its obligations hereunder and to
the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of each of KPMG LLP and KPMG in agreed form
confirming that they are independent public accountants within the
meaning of the American Institute of Certified Public Accountants
and the applicable published rules and regulations thereby and to
the effect that:
(i) in their opinion the financial statements examined
by them and included in the Offering Document and in the
Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the applicable published rules and
regulations thereunder ("Rules and Regulations");
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(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Document and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Guarantor, inquiries of officials
of the Guarantor who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in
the Offering Document do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior
to the date of this Agreement, there was any change in
the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there
was any decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest
balance sheet included in the Offering Document; or
(C) for the period from the closing date of the
latest income statement included in the Offering
Document to the closing date of the latest available
income statement read by such accountants there were any
decreases, as compared with the corresponding period of
the previous year, in consolidated net sales, net
operating income, consolidated income before
extraordinary items or net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Guarantor and its subsidiaries
subject to the internal controls of the Guarantor's accounting
system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
(v) other items, in form and substance satisfactory to
the Purchaser, concerning the financial information with
respect to the Guarantor and the Guarantor's subsidiaries and
the unaudited pro forma financial data, in each case as set
forth in the Offering Document.
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(b) The Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP in form and
substance satisfactory to the Purchasers concerning the financial
information with respect to the Product Lines set forth in the
Offering Document.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the
judgment of CSFBC, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market, or (ii) (A) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the
Company, the Guarantor or the Guarantor's subsidiaries which, in the
judgment of CSFBC, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the offering or the
sale of and payment for the Offered Securities; (B) any downgrading
in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company or the
Guarantor (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading,
of such rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company or the Guarantor on any
exchange or in the over-the-counter market; (D) any banking
moratorium declared by U.S. Federal or New York authorities; or (E)
any outbreak or escalation of major hostilities in which the United
States or Ireland is involved, any declaration of war by Congress or
any other substantial national or international calamity or
emergency if, in the judgment of CSFBC, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities.
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxxx & Xxxxx, U.S. counsel for the Company and
the Guarantor, substantially in the form of Exhibit 1 hereto.
(e) The Purchasers shall have received an opinion, dated the
Closing Date, of XxXxxx Xxxxxxxxxx, Irish counsel for the Company
and the Guarantor, in form and substance satisfactory to CSFBC and
its counsel.
(f) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxx Xxxxx, General Counsel of the Company and the
Guarantor, substantially in the form of Exhibit 2 hereto.
(g) The Purchasers shall have received from Weil, Gotshal &
Xxxxxx LLP, counsel for the Purchaser, such opinion, dated the
Closing Date, with respect to the validity of the Offered
Securities, the Offering Circular, the exemption from registration
for the offer and sale of the Offered Securities by the Company to
the several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as CSFBC may require,
and the Company' and the Guarantor shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters with reference to same in the
Offering Circular.
(h) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company and the
Guarantor in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations
and warranties of the Company and the Guarantor in this
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Agreement are true and correct, that the Company and the Guarantor
have complied with all agreements and satisfied all conditions on
their parts to be performed or satisfied hereunder at or prior to
the Closing Date, and that, subsequent to the dates of the most
recent financial statements in the Offering Document, there has been
no material adverse change, or any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Guarantor and the Guarantor's subsidiaries taken as a whole except
as set forth in or contemplated by the Offering Document or as
described in such certificate.
(i) The Purchasers shall have received a letter, dated the
Closing Date, of KPMG LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three days prior to the
Closing Date for the purposes of this subsection.
(j) The Purchasers shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not
more than three days prior to the Closing Date for the purposes of
this subsection.
(k) The Acquisitions pursuant to the BMS Agreement shall have
been completed on the terms contained in the BMS Agreement.
(l) The Purchasers shall have received evidence, in form and
substance satisfactory to the Purchasers and their counsel, that the
Company's existing working capital facility with a syndicate of
banks led by PNC Business Credit has been repaid in full and that
all liens securing such facility have been released.
(m) The Purchasers shall have received evidence, in form and
substance satisfactory to the Purchasers and their counsel, that the
Company's existing Senior Subordinated Discount Notes due 2001 have
been redeemed in full.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
requests. CSFBC may in its sole discretion waive compliance with any conditions
to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company and the Guarantor,
jointly and severally, will indemnify and hold harmless each Purchaser, its
partners, directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which each
Purchaser may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular or
the Exchange Act Reports, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, including any losses, claims, damages or liabilities
arising out of or based upon the Company's or the Guarantor's failure to perform
its obligations under Section 5(a) of this Agreement, and will reimburse each
Purchaser or any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company and the Guarantor will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by any Purchaser through
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CSFBC specifically for use therein, it being understood and agreed that the only
such information consists of the information described as such in subsection (b)
below.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company, the Guarantor, their directors and
officers and each person, if any, who controls the Company or the
Guarantor within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Securities
Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document,
or any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such
Purchaser through CSFBC specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company or the Guarantor in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Purchaser consists of the
following information in the Offering Document furnished on behalf
of each Purchaser: the third paragraph, the second and third
sentences of the eight paragraph, and the ninth paragraph, under the
caption "Plan of Distribution;" provided, however, that the
Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company's or the
Guarantor's failure to perform its obligations under Section 5(a) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes
an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action
and does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Purchasers on the
other from the offering of the Offered
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Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Guarantor on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Guarantor on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by
the Purchasers from the Company under this Agreement. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor or the
Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company and the Guarantor under
this Section shall be in addition to any liability which the Company
and the Guarantor may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange
Act; and the obligations of the Purchasers under this Section shall
be in addition to any liability which the Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company or the Guarantor within the
meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities, CSFBC may make arrangements satisfactory to the Company for
the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to CSFBC
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their officers and of the several Purchasers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Purchaser, the Company, the Guarantor or any of their
respective representatives, officers or directors or
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any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(c)(ii), the Company and the Guarantor will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, N.Y. 100 10-3629, Attention: Investment Banking Department --
Transactions Advisory Group, or, if sent to the Company or the Guarantor, will
be mailed, delivered or telegraphed and confirmed to it at Rockaway 80 Corporate
Center, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxx X. Xxxxxxxxx, Chief Financial Officer; provided, however, that any notice
to a Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company and the Guarantor as
if such holders were parties thereto.
12. Representation of Purchasers. You will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
you will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
The Company and the Guarantor hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The Guarantor irrevocably
appoints Xxxxxxxx & Xxxxx, with offices on the date hereof located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Guarantor, by the person serving the same
to the address provided in Section 10, shall be deemed in every respect
effective service of process upon the Guarantor in any such suit or proceeding.
The Guarantor further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
The obligation of the Guarantor in respect of any sum due to the Purchaser
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
the Purchaser of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) the Purchaser may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
the Purchaser hereunder, the Company agrees, as a separate obligation and
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notwithstanding any such judgment, to indemnify the Purchaser against such loss.
If the United States dollars so purchased are greater than the sum originally
due to the Purchaser hereunder, the Purchaser agrees to pay to the Guarantor an
amount equal to the excess of the dollars so purchased over the sum originally
due to the Purchaser hereunder.
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If the foregoing is in accordance with the Purchaser's understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Guarantor
and the Purchaser in accordance with its terms.
Very truly yours,
XXXXXX XXXXXXXX, INC.
By /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY
By /s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
The foregoing Purchase Agreement Executive Vice President and
is hereby confirmed and accepted Chief Financial Officer
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ M. Xxxxxxxx Xxxxxx
M. Xxxxxxxx Xxxxxx
Director
Acting on behalf of itself
and as the Representative
of the several Purchasers
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