MYLAN INC. (a Pennsylvania corporation) 1,860,000 Shares of 6.50% Mandatory Convertible Preferred Stock PURCHASE AGREEMENT
EXHIBIT 1.2
(a Pennsylvania corporation)
1,860,000 Shares of 6.50% Mandatory Convertible Preferred Stock
Dated: November 13, 2007
(a Pennsylvania corporation)
1,860,000 Shares of 6.50% Mandatory Convertible Preferred Stock
November 13, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXX, SACHS & CO.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXX, SACHS & CO.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mylan Inc., a Pennsylvania corporation (the “Company”) confirms its agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”), Xxxxxxx, Xxxxx &
Co. (“Xxxxxxx Sachs”) and each of the other Underwriters named in Schedule A hereto (collectively,
the “Underwriters,” which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and Xxxxxxx Xxxxx are acting as
representatives (in such capacity, the “Representatives”), with respect to the (i) sale by the
Company and the purchase by the Underwriters, acting severally and not jointly, of the numbers of
shares of Mandatory Convertible Preferred Stock, par value $0.50 per share, of the Company
(“Preferred Stock”) set forth in Schedules A and B hereto and (ii) grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 279,000 additional shares of Preferred Stock to cover overallotments,
if any. The aforesaid 1,860,000 shares of Preferred Stock (the “Initial Securities”) to be
purchased by the Underwriters and all or any part of the 279,000 shares of Preferred Stock subject
to the option described in Section 2(b) hereof (the “Option Securities”) are hereinafter called,
collectively, the “Securities.”
Concurrently with the offering and sale of the Securities by the Company pursuant to the terms
of this Agreement, the Company is offering to sell up to 53,500,000 shares of common stock
(including any shares of such common stock subject to the underwriters’ over-allotment option) (the
“Common Stock”), pursuant to the terms of an Underwriting Agreement, dated as of even date
herewith, among the Company, Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and the other underwriters named therein
(the “Concurrent Commmon Stock Offering”).
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) an
automatic shelf registration statement on Form S-3 (No. 333-140778), including the related
preliminary prospectus or prospectuses, which registration statement became effective upon filing
under Rule 462(e) of the rules and regulations of the Commission (the “1933 Act Regulations”) under
the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement covers the
registration of the Securities
under the 1933 Act. Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430B (“Rule 430B”) of the
1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations.
Any information included in such prospectus that was omitted from such registration statement at
the time it became effective but that is deemed to be part of and included in such registration
statement pursuant to Rule 430B is referred to as “Rule 430B Information.” Each prospectus used in
connection with the offering of the Securities that omitted Rule 430B Information is herein called
a “preliminary prospectus.” Such registration statement, at any given time, including the
amendments thereto at such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the “Registration Statement.” The Registration Statement at the time
it originally became effective is herein called the “Original Registration Statement.” The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at the time of the execution of this Agreement and any preliminary
prospectuses that form a part thereof, is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company represents and warrants to each Underwriter
as of the date hereof, the Applicable Time referred to in Section 1(a)(iii) hereof and the Closing
Time referred to in Section 2(c), and agrees with each Underwriter, as follows:
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof, the Company was and
is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”), including not having been and not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, and the Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement” pursuant to Rule 415(a)(1)(x). The Company has not re
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ceived from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act
Regulations objecting to the use of the automatic shelf registration statement form.
(ii) At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(iii) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on February 20, 2007, and any post-effective amendment
thereto also became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided by
Rule 163 and otherwise complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the exemption from Section
5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration
Statement complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued or at the Closing Time, included
or will include an untrue statement of a material fact or omitted or will 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.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of
the Original Registration Statement or any amendment thereto) complied when so filed in all
material respects with the 1933 Act Regulations and each such preliminary prospectus was and
the Prospectus delivered to the Underwriters for use in connection with this offering will
be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
As of the Applicable Time (x) the Statutory Prospectus (as defined below) and the
information included on Schedule C hereto, all considered together (collectively, the
“General Disclosure Package”) and (y) the Issuer Free Writing Prospectuses (as defined
below) issued at or prior to the Applicable Time, as the case may be, when considered
together with the General Disclosure Package, did not include any untrue statement of a
material fact or omit to state any material
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fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the time of the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet, will 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.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 am (Eastern time) on November 14, 2007 or such other time
as agreed by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other prospectus deemed to
be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through any Representative expressly for use therein.
(iv) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus at the time they
were or hereafter are filed with the Commission, complied, and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), as
applicable, and, when read together with the other information in the Prospectus, (a) at the
time the Original Registration Statement became effective, (b) at the earlier of the time
the Prospectus was first used and the date and time of the first contract of sale of
Securities in this offering and (c) at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
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(v) Independent Accountants. Deloitte & Touche LLP and Deloitte Xxxxxxx &
Sells, the accountants who certified the financial statements and supporting schedules
incorporated by reference in the Registration Statement have each indicated in writing to
the Company that they are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(vi) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes present fairly the financial position of (a) the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved and (b) the generic pharmaceutical business of Merck KGaA acquired by the Company
(“Merck Generics”) at the dates indicated and the statement of operations, stockholders’
equity and cash flows of Merck Generics and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in accordance with the International
Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the periods
involved, and the reconciliation of shareholders’ equity and net income to GAAP of such
financial statements complies with the applicable requirements of the Commission. The
supporting schedules, if any, included in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly in accordance with GAAP (or in the case of Merck
Generics, the IFRS) the information required to be stated therein. The summary financial
information, other than the pro forma financial data, included in the Registration
Statement, the General Disclosure Package and the Prospectus have been derived from the
historical financial statements of the Company and Merck Generics incorporated by reference
in the Prospectus. The pro forma financial data of the Company and its consolidated
subsidiaries included in the Prospectus have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma financial statements and have
been properly compiled on such basis; the assumptions used in the preparation thereof and
the adjustments used therein are appropriate to give effect to the transactions on the dates
indicated in the Prospectus.
(vii) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”) and (B)
there have been no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise. Since September 30, 2007, except
as described in the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(viii) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing 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 so to
qualify or to be in good standing would not result in a Material Adverse Effect.
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(ix) Good Standing of Designated Subsidiaries. Each subsidiary listed on
Schedule D hereto (each a “Designated Subsidiary” and, collectively, the “Designated
Subsidiaries”) has been duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its formation, has
corporate or other power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus and is duly
qualified as a foreign corporation or limited liability company to transact business and is
in good standing 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 so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, Prospectus or General
Disclosure Package, all of the issued and outstanding capital stock of each Designated
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of the Designated Subsidiaries was issued in violation of any
preemptive or similar rights of any securityholder of such Designated Subsidiary. The
subsidiaries of the Company other than Designated Subsidiaries, considered in the aggregate
as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02
of Regulation S-X.
(x) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements, employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(xi) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(xii) Authorization and Description of Preferred Stock. The Preferred Stock
conforms to all statements relating thereto contained or incorporated by reference in the
Prospectus and such description of the Preferred Stock conforms to the rights set forth in
the Company’s Amended and Restated Articles of Incorporation most recently amended and
restated on the Closing Date (the “Certificate of Incorporation”) and Bylaws. Upon issuance
and delivery of the Securities in accordance with this Agreement and the Prospectus, the
Securities will be convertible for shares of Common Stock in accordance with the terms of
the Securities and the Certificate of Incorporation; the shares of Common Stock issuable
upon conversion of the Securities have been duly authorized and reserved for issuance upon
such conversion by all necessary corporate action and such shares, when issued upon such
conversion in accordance with the terms of the Securities, the Certificate of Incorporation
and the Prospectus, will be validly issued and will be fully paid and non-assessable; no
holder of such shares will be subject to personal liability by reason of being such a
holder; and the issuance of such shares upon such conversion will not be subject to the
preemptive or other similar rights of any securityholder of the Company.
(xiii) Authorization and Description of Common Stock. The Common Stock issuable
upon conversion of the Securities conforms to all statements relating thereto contained or
incorporated by reference in the Prospectus and such description of the Common Stock
conforms to the rights set forth in the Certificate of Incorporation and Bylaws.
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(xiv) Authorization of Certificate of Incorporation. The Certificate of
Incorporation has been duly authorized by the Company. The Certificate of Incorporation set
forth the rights, preferences and priorities of the Preferred Shares, and the holders of the
Preferred Shares will have the rights set forth in the Certificate of Incorporation.
(xv) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is (a) in violation of its charter or by-laws or (b) in default in the
performance or observance 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 the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, “Agreements and Instruments”)
except for defaults that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Securities and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or in the Prospectus and the
consummation of the transactions contemplated herein and in the Prospectus (including the
issuance and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption “Use of Proceeds”) and, if
issued, the Concurrent Common Stock Offering and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate or other action
and do not and will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to, the
Agreements and Instruments except for such conflicts, breaches or defaults or Repayment
Events or liens, charges or encumbrances that, singly or in the aggregate, would not result
in a Material Adverse Effect, nor will such action result in any violation of (x) the
provisions of the charter or by-laws of the Company or any of its subsidiaries or (y) 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 or any of its subsidiaries or any of their assets, properties or
operations, except in the case of clause (y) above, any such violations that, singly or in
the aggregate, would not result in a Material Adverse Effect. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries (except for indebtedness which is to be repaid from the
net proceeds of such offerings as contemplated by “Use of Proceeds” in the Prospectus).
(xvi) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees
of any of its or any subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material Adverse Effect.
(xvii) Compliance with Laws; Absence of Proceedings. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus and except
such matters as would not, singly or in the aggregate, result in a Material Adverse Effect,
neither the Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment. Except as described in the Registration
Statement, the General Disclosure Package and the Pro-
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spectus, there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened, against or affecting the Company or any of its
subsidiaries which might result in a Material Adverse Effect, or which might materially and
adversely affect the consummation of the transactions contemplated by this Agreement, the
Concurrent Convertible Preferred Stock Offering or the performance by the Company of its
obligations hereunder or thereunder, as applicable. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective property or assets is the subject which are not described in
the Registration Statement or Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material Adverse Effect.
(xviii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the General Disclosure Package, the
Prospectus or the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xix) Taxes. All United States federal income tax returns of the Company and
its subsidiaries required by law to be filed have been filed or extensions thereof have been
duly requested and all taxes shown by such returns or otherwise assessed, which are due and
payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided or where the failure to
pay would not result in a Material Adverse Effect. The Company and its subsidiaries have
filed all other tax returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law except insofar as the failure to file such
returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company and its subsidiaries,
except for such taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided or where the failure to pay would not result in a Material
Adverse Effect. The charges, accruals and reserves on the books of the Company in respect
of any income and corporation tax liability for any years not finally determined are
adequate to meet any assessments or re-assessments for additional income tax for any years
not finally determined, except to the extent of any inadequacy that would not result in a
Material Adverse Effect.
(xx) Controls. The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management’s general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets, (C)
access to assets is permitted only in accordance with management’s general or specific
authorization and (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except, in each case, as disclosed under “Risk Factors — We must maintain
adequate internal controls and be able, on an annual basis, to provide an assertion as to
the effectiveness of such controls. Failure to maintain adequate internal controls or to
implement new or improved controls could have a material adverse effect on our business,
financial position and results of operations and could cause the market value of our common
stock to decline” in the Prospectus, the Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the 0000 Xxx) that comply with
the requirements of the 1934 Act; such disclosure controls and procedures have been designed
to ensure that material information relating to the Company and its subsidiaries is made
known to the
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Company’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective.
(xxi) Insurance. The Company and its subsidiaries carry or are entitled to the
benefits of insurance, with financially sound and reputable insurers, in such amounts and
covering such risks as is generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full force and effect.
(xxii) Solvency. The Company is, and immediately after the Closing Time will
be, Solvent. As used herein, the term “Solvent” means, with respect to the Company on a
particular date, that on such date (A) the fair market value of the assets of the Company is
greater than the total amount of liabilities (including contingent liabilities) of the
Company, (B) the present fair salable value of the assets of the Company is greater than the
amount that will be required to pay the probable liabilities of the Company on its debts as
they become absolute and matured, (C) the Company is able to realize upon its assets and pay
its debts and other liabilities, including contingent obligations, as they mature, and (D)
the Company does not have unreasonably small capital.
(xxiii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xxiv) Possession of Intellectual Property. Except as described in the
Registration Statement, General Disclosure Package and Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now operated by
them, and neither the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xxv) Absence of Further Requirements. Except as disclosed in the Registration
Statement, General Disclosure Package and Prospectus and other than registration or
qualification under state securities or blue sky laws in connection with the offer and sale
of the Securities, no filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder, the issuance of
shares of Common Stock upon conversion of the Securities or the consummation of the
transactions contemplated by this Agreement.
(xxvi) Possession of Licenses and Permits. Except as described in the
Registration Statement, General Disclosure Package and Prospectus, the Company and its
subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now operated by
them, except where the failure so to possess
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would not, singly or in the aggregate, result in a Material Adverse Effect; the Company
and its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would not, singly
or in the aggregate, result in a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxvii) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Registration Statement and Prospectus or (b) do not, singly
or in the aggregate, materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business of the Company
and its subsidiaries, considered as one enterprise, and under which the Company or any of
its subsidiaries holds properties described in the Registration Statement and Prospectus,
are in full force and effect, except where the failure of such lease or sublease to be in
full force and effect would not singly or in the aggregate result in a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the Company or
any of its subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any subsidiary thereof to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xxviii) No Cessation By Supplier. Except as would not singly or in the
aggregate have a Material Adverse Effect, no supplier of merchandise to the Company or any
of its subsidiaries has ceased shipments of merchandise to the Company.
(xxix) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among any of the Company or any affiliate of the Company, on the one hand,
and any director, officer, stockholder, customer or supplier of any of them, on the other
hand, which would be required by the 1933 Act or by the 1933 Act Regulations to be described
in the Registration Statement or Prospectus which is not described in the Registration
Statement and Prospectus.
(xxx) Environmental Laws. Except as described in the Registration Statement,
General Disclosure Package and Prospectus and except such matters as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have
all permits,
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authorizations and approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending or, to the Company’s
knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that would reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or Environmental Laws.
(xxxi) Investment Company Act. The Company is not required, and upon the
issuance and sale of the offered Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be required, to register
as an “investment company” under the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxxii) Pending Proceedings and Examinations. The Registration Statement is
not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the
1933 Act in connection with the offering of the Securities.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule C, that proportion of the
number of Initial Securities set forth in Schedule B opposite the name of the Company which the
number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Securities,
subject, in each case, to such adjustments among the Underwriters as the Representatives in their
sole discretion shall make to eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to an additional 279,000
shares of Preferred Stock, as set forth in Schedule B, at the price per share set forth in Schedule
C, less an amount per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole or in part from
time to time (but not more than two (2) times without the written consent of the Company) only for
the purpose of covering overallotments which may be made in connection with the offering and
distribution of the Initial Securities upon written notice by the Representatives to the Company
setting forth the number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such Option Securities.
Any such time and date of delivery (an “Additional Closing Time”) shall be determined by the
Representatives, but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion
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of the Option Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being purchased which the
number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to
the total number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and
the Company at 9:00 A.M. (Eastern time) on the third (fourth, if the Applicable Time occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company (such time and date
of payment and delivery being herein called “Closing Time”).
Payment shall be made to the Company by wire transfer of immediately available funds to bank
accounts designated by the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and
the Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and
not as representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the applicable Additional Closing Time, as applicable, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities shall be in such
denominations and registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time. The Securities will be made available for
examination and packaging by the Representatives in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
(e) Appointment of Qualified Independent Underwriter. The Company hereby confirms its
engagement of Xxxxx and Company, LLC as, and Xxxxx and Company, LLC hereby confirms its agreement
with the Company to render services as, a “qualified independent underwriter” within the meaning of
Rule 2720 of the Conduct Rules of the Financial Industry Regulatory Authority with respect to the
offering and sale of the Securities. Xxxxx and Company, LLC, solely in its capacity as qualified
independent underwriter and not otherwise, is referred to herein as the “Independent Underwriter.”
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing
Fees. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B
and will notify the Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement or new registration statement
relating to the Securities shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or the filing of a new registration statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or otherwise deemed to be a
part thereof or for additional in-
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formation, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or such new registration statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if
the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will effect the filings
required under Rule 424(b), in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment. The Company shall pay the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1) (i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents; Preparation of Final Term Sheet.
The Company will give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or new registration statement relating to the
Securities or any amendment, supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration Statement or amendment
thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object. The Company has given the Representatives notice
of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior
to the Applicable Time; the Company will give the Representatives notice of its intention to
make any such filing from the Applicable Time to the Closing Time (or if later, to the date
of expiration of the option granted to the Underwriters pursuant to Section 2(b)) and will
furnish the Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object. The Company will prepare a
final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in
form and substance satisfactory to the Representatives, and shall file such Final Term Sheet
as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business
two business days after the date hereof; provided that the Company shall furnish the
Representatives with copies of any such Final Term Sheet a reasonable amount of time prior
to such proposed filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge, signed copies of the
Original Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein or otherwise deemed to be a part thereof) and signed
copies of all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Original Registration Statement and
of each amendment thereto (without
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exhibits) for each of the Underwriters. The copies of the Original Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in this Agreement and
in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or to file a new registration statement or
amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment, supplement or new registration statement as may be
necessary to correct such statement or omission or to comply with such requirements, the
Company will use its best efforts to have such amendment or new registration statement
declared effective as soon as practicable (if it is not an automatic shelf registration
statement with respect to the Securities) and the Company will furnish to the Underwriters
such number of copies of such amendment, supplement or new registration statement as the
Underwriters may reasonably request. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement (or any other registration statement relating to the
Securities) or the Statutory Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company will promptly notify the
Representatives and will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Representatives may designate
and to maintain such qualifications in effect for a period of not less than one year from
the date hereof; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in
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which it is not so qualified or so subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The Company will also
supply the Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing. The Company will use its best efforts to effect the listing of the
Securities and the Common Stock issuable upon conversion of the Securities on the New York
Stock Exchange subject to official notice of issuance.
(j) Reporting Requirements. The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(k) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it has not made
and will not make any offer relating to the Securities that would constitute an “issuer free
writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission;
provided, however, that prior to the preparation of the Final Term Sheet in
accordance with Section 3(b), the Underwriters are authorized to use the information with
respect to the final terms of the Securities in communications conveying information
relating to the offering to investors. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule
433, and has complied and will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping.
(l) Restriction on Sale of Common Stock. During a period of 90 days from the date of
this Agreement (the “Lock-Up Period”) , the Company will not, without the prior written
consent of Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any share of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to the Securities to be sold hereunder, or to the
following:
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(i) any transaction involving, including any repurchase, redemption or conversion of,
the Securities;
(ii) the issuance by the Company to its employees or directors of options, warrants or
other rights to purchase Preferred Stock or other equity awards in shares of Preferred Stock
under any of the Company’s equity incentive or compensation plans in effect as of the
Closing Date;
(iii) any registration statement filed with the SEC on Form S-8 with respect to
securities to be issued pursuant to any employee benefit plan (as defined in Rule 405 under
the 0000 Xxx);
(iv) any offer, sale, issuance or disposition of Common Stock in connection with the
conversion or payment of dividends on the Convertible Preferred Stock, or the filing of a
registration statement in connection with any of the foregoing;
(v) the offer, sale, issuance or disposition of Common Stock in connection with the
conversion of the Company’s 1.25% Senior Convertible Notes, or any transaction pursuant to
the convertible hedge transactions or warrant transactions entered into in connection
therewith, or the filing of a registration statement in connection with any of the
foregoing; and
(vi) the offer or sale of shares of Common Stock by persons having registration rights
pursuant to the Shareholders Agreement by and among India Newbridge Investments Limited,
India Newbridge Coinvestment Limited, India Newbridge Partners FDI Limited, Xxxxxxx
(Mauritius) PTE Ltd, Xxxxxx Xxxxxxxxxx and Mylan Laboratories Inc., dated as of August 28,
2006, or the filing by the Company of a registration statement in connection therewith.
SECTION 4. Payment of Expenses.
(a) Expenses. As between the Underwriters and the Company, the Company will pay or cause to
be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement among Underwriters and
such other documents as may be required in connection with the offering, purchase, sale, issuance
or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters,
(iv) the preparation, printing and filing of the Certificate of Incorporation, (v) the fees and
disbursements of the Company’s counsel, accountants and other advisors, (vi) the qualification of
the Securities and the Common Stock under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vii) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (viii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (ix) the costs and
expenses of the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Securities, including without limitation, expenses associated
with the production of road show slides and graphics, reasonable fees and expenses of any
consultants engaged in connection with the road show presentations, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show, (x) the fees
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and expenses of any transfer agent or registrar for the Common Stock, (xi) the fees and
expenses incurred in connection with the listing of the Securities and Common Stock upon conversion
of the Securities on the New York Stock Exchange and (xii) the costs and expenses (including
without limitation any damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the Securities made by the
Underwriters caused by a breach of the representation contained in the sixth paragraph of Section
1(a)(iii). It is understood, however, that except as provided in this Section 4 and Sections 6, 8
and 9, the Underwriters will pay all of their own costs and expenses including the fees and
expenses of the Independent Underwriter and Xxxxxx Xxxxxx & Xxxxxxx llp, counsel to the
Underwriters.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) or Section 11 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section shall not affect any agreement
that the Company may make for the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters
hereunder are subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company or any subsidiary of
the Company delivered pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing
Fee. The Registration Statement has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the
Rule 430B Information shall have been filed with the Commission in the manner and within the
time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective
amendment providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B). The Company shall have paid the required
Commission filing fees relating to the Securities within the time period required by Rule
456(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable,
shall have updated the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of (i) Cravath, Swaine & Xxxxx
LLP, special counsel for the Company, (ii) Xxxxxxx X. Xxxxxxx Esq., Corporate Counsel of the
Company, (iii) Xxxxxxxx Xxxxxxxxx & Xxxxxx PC, special outside Pennsylvania counsel for the
Company, (iv) Freshfields Bruckhaus Xxxxxxxx, special European Union and Japanese Counsel
for the Company, (v) Lang Xxxxxxxx LLP, special Canadian Counsel for the Company and (vi)
Hall and Xxxxxx, special Australian Counsel for the Company in each case, in form and
substance satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth in Exhibits
A through F hereto, respectively. Any such counsel may state that, insofar as such opinion
involves factual matters,
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such counsel has relied, to the extent such counsel deemed proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall
have received the favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx
llp, counsel for the Underwriters, together with signed or reproduced copies of
such letters for each of the other Underwriters. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(d) Officers’ Certificate. At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Prospectus or
the General Disclosure Package, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountants’ Comfort Letters. At the time of the execution of this Agreement, the
Representatives shall have received letters dated such date from (i) Deloitte & Touche LLP,
(ii) Deloitte, Xxxxxxx & Sells and (iii) KPMG LLP, each in form and substance satisfactory
to the Representatives, together with signed or reproduced copies of such letters for each
of the other Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letters. At Closing Time, the Representatives shall have
received letters, dated as of Closing Time, from (i) Deloitte & Touche LLP, (ii) Deloitte,
Xxxxxxx & Sells and (iii) KPMG LLP, each to the effect that they reaffirm the statements
made in the letters furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to
Closing Time.
(g) Maintenance of Rating. Since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to any of the Company’s debt by any
“nationally recognized statistical rating agency,” as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have
publicly announced that it has under surveillance or review, in the possible negative
implications, its rating of the Company’s debt.
(h) Approval of Listing. At Closing Time, the Securities and the Common Stock issuable
upon conversion of the Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
-18-
(i) Additional Documents. At the Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(j) Lock-up Agreements. At the date of this Agreement, the Representatives shall have
received agreements substantially in the form of Exhibit G hereto signed by the persons
listed on Schedule E.
(k) Certificate of Incorporation. At the Closing Time, the Certificate of
Incorporation shall have been filed with the Department of State for the Commonwealth of
Pennsylvania.
(l) Conditions to Purchase of Option Securities. In the event that the Representatives
exercise their option provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Additional Closing Time and, at the relevant
Additional Closing Time, the Representatives shall have received:
(i) Officers’ Certificate. A certificate, dated such Additional Closing Time,
of the President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company and each Guarantor confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains
true and correct as of such Additional Closing Time.
(ii) Opinion of Counsel for Company. The favorable opinions, dated as of the
Additional Closing Time, of (a) Cravath, Swaine & Xxxxx LLP, special counsel for the
Company and (b) Xxxxxxx X. Xxxxxxx, Esq., Corporate Counsel of the Company, in each
case, in form and substance satisfactory to counsel for the Underwriters, dated such
Additional Closing Time, relating to the Option Securities to be purchased on such
Additional Closing Time and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable opinion of Xxxxxx
Xxxxxx & Xxxxxxx llp, counsel for the Underwriters, each dated such
Additional Closing Time, relating to the Option Securities to be purchased on such
Additional Closing Time and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort Letter. Letters from (a) Deloitte & Touche LLP and (b)
KPMG LLP, each in form and substance satisfactory to the Representatives and dated
such Additional Closing Time, substantially in the same form and substance as the
letters furnished to the Representatives pursuant to Section 5(f) hereof, except
that the “specified date” in the letter furnished pursuant to this paragraph shall
be a date not more than five days prior to such Additional Closing Time.
(v) No Downgrading. Subsequent to the date of this Agreement, no downgrading
shall have occurred in the rating accorded any of the Company’s debt by any
“nationally recognized statistical rating organization,” as that term is defined by
the Commission
-19-
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its ratings of any debt.
(m) Termination of Agreement. If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of
any condition to the purchase of Option Securities, at an Additional Closing Time which is
after the Closing Time, the obligations of the several Underwriters to purchase the relevant
Option Securities, may be terminated by the Representatives by notice to the Company at any
time at or prior to Closing Time or such Additional Closing Time, as the case may be, and
such termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company. (1) The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the
1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any Issuer Free Writing Prospectus, the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below)
any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through any Representative expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430B Information
or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
-20-
(2) In addition to and without limitation of the Company’s obligation to indemnify Xxxxx and
Company, LLC as an Underwriter, the Company also agrees to indemnify and hold harmless the
Independent Underwriter, its Affiliates and selling agents and each person, if any, who controls
the Independent Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, incurred as a result of the Independent Underwriter’s participation as a “qualified
independent underwriter” within the meaning of Rule 2720 of the Conduct Rules of the Financial
Industry Regulatory Authority, Inc. in connection with the offering of the Securities.
(b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)(1) and (b) of this
Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), including
the Rule 430B Information or any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through any Representative expressly for
use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a)(1) above, counsel to the indemnified parties shall be selected
by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances; provided, that,
if indemnity is sought pursuant to Section 6(a)(2), then, in addition to the fees and expenses of
such counsel for the indemnified parties, the indemnifying party shall be liable for the reasonable
fees and expenses of not more than one counsel (in addition to any local counsel) separate from its
own counsel and that of the other indemnified parties for the Independent Underwriter in its
capacity as a “qualified independent underwriter” and all persons, if any, who control the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of 1934 Act
in connection with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances if, in the reasonable
judgment of the Independent Underwriter, there may exist a conflict of interest between the
Independent Underwriter and the other indemnified parties. Any such separate counsel for the
Independent Underwriter and such control persons of the Independent Underwriter shall be designated
in writing by the Independent Underwriter. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding
-21-
or claim and (ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that Xxxxx and Company, LLC will not receive any
additional benefits hereunder for serving as the Independent Underwriter in connection with the
offering and sale of the Securities.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
-22-
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION
8. Representations, Warranties and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the
Company, or any of its subsidiaries, submitted pursuant hereto, shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto) or the General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or with respect to Clearstream or
Eurocolar Systems in Europe, or (v) if a banking moratorium has been declared by either Federal,
New York or Pennsylvania authorities.
-23-
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall
fail at Closing Time or an Additional Closing Time to purchase the Securities which it or they are
obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount
of the Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or, in the case of an Additional Closing Time that is after the Closing
Time, which does not result in a termination of the obligation of the Underwriters to purchase and
the Company to sell the relevant Option Securities, as the case may be, or the Company shall have
the right to postpone Closing Time or the relevant Additional Closing Time, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Company.
If the Company shall fail at Closing Time or at the Date of Delivery to sell the number of
Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any nondefaulting party; provided, however, that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately
upon commencement of discussions with respect to the transactions contemplated hereby, the Company
(and each employee, representative or other agent of the Company) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Company relating to such tax treatment and tax structure. For
purposes of the foregoing, the term “tax treatment” is the purported or claimed federal income tax
treatment of the transactions contemplated hereby, and the term “tax structure” includes any fact
that may be relevant to understanding the purported or claimed federal income tax treatment of the
transactions contemplated hereby.
-24-
SECTION 13. Notices. All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx Xxxxx, at World
Financial Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxxxx, with a copy to Xxxxxxxx Xxxxxxxxx, Esq., at Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; notices to the Company shall be directed to Mylan Inc, 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Chief Financial
Officer, with a copy to Xxxxxxx X. Xxxxxx, Esq., at Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a)
the purchase and sale of the Securities pursuant to this Agreement, including the determination of
the public offering price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the
process leading to such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company or its respective stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of each of the Company and (e)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own respective legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
SECTION 16. Parties. This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and its successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and its successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and its successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. 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.
-25-
SECTION 20. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.
-26-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
| Very truly yours, MYLAN INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Title: Executive Vice President and Chief | ||||
| Financial Officer | ||||
S-1
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
By:
|
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX | |||
| INCORPORATED | ||||
By
|
/s/ Authorized Signatory | |||
| Authorized Signatory | ||||
By:
|
XXXXXXX, SACHS & CO. | |||
By
|
/s/ Authorized Signatory | |||
| Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
S-2
SCHEDULE A
| Number of | ||||
| Name of Underwriter | Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
642,030 | |||
Xxxxxxx, Sachs & Co. |
463,600 | |||
Citigroup Global Markets Inc. |
272,895 | |||
X.X. Xxxxxx Securities Inc. |
272,895 | |||
Xxxxx and Company LLC |
37,200 | |||
Banc of America Securities LLC |
53,140 | |||
Mitsubishi UFJ Securities International plc |
53,140 | |||
Calyon Securities (USA) Inc. |
9,300 | |||
Commerzbank Capital Markets Corp. |
9,300 | |||
Fifth Third Securities, Inc. |
9,300 | |||
Mizuho Securities USA Inc. |
9,300 | |||
NatCity Investments, Inc. |
9,300 | |||
Scotia Capital (USA) Inc. |
9,300 | |||
Suntrust Xxxxxxxx Xxxxxxxx, Inc. |
9,300 | |||
Total |
1,860,000 | |||
Sch A-1
SCHEDULE B
| Number of Initial | Maximum Number of Option | |||||||
| Securities to be Sold | Securities to Be Sold | |||||||
| 1,860,000 | 279,000 | |||||||
Sch B-1
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 333-140778
Filed Pursuant to Rule 433
Registration No. 333-140778
Pricing Term Sheet
November 13, 2007
November 13, 2007
MYLAN INC. (the “Company”)
Pricing Term Sheet
The following information supplements both (i) the Preliminary Prospectus Supplement for the
offering of Mandatory Convertible Preferred Stock and (ii) the Preliminary Prospectus Supplement
for the offering of Common Stock, each dated November 1, 2007, filed pursuant to Rule 424(b) under
the Securities Act, Registration Statement No. 333-140778.
6.50% Mandatory Convertible Preferred Stock Offering
Title of securities:
|
6.50% Mandatory Convertible Preferred Stock | |
Aggregate amount offered:
|
$1,860,000,000 of liquidation preference | |
Shares issued:
|
1,860,000 | |
Liquidation preference per share: |
$1,000.00 | |
Overallotment option:
|
279,000 shares | |
Price to public:
|
100% of liquidation preference | |
Annual dividend rate:
|
6.50% per share on the liquidation preference of $1,000.00 per share ($65.00 per annum), payable quarterly in arrears in cash, shares of the Company’s common stock, or a combination thereof at the Company’s election. | |
First dividend date:
|
February 15, 2008 | |
Expected amount of first
dividend payment per share:
|
$15.53 | |
Expected amount of each
subsequent dividend payment
per share:
|
$16.25 | |
Dividend cap:
|
$9.00 | |
Mandatory conversion date:
|
November 15, 2010 |
Sch C-2
Threshold appreciation price:
|
$17.08 (represents an approximately 22% appreciation over the initial price) | |
Conversion rate:
|
If the applicable market value of shares of | |
| the Company’s common stock is equal to or greater than $17.08 (the “threshold appreciation price”), then the conversion rate will be 58.5480 shares of the Company’s common stock per share of mandatory convertible preferred stock (the “minimum conversion rate”), which is equal to $1,000.00 divided by the threshold appreciation price. | ||
| If the applicable market value of shares of the Company’s common stock is less than the threshold appreciation price, but greater than $14.00 (the “initial price”), then the conversion rate will be $1,000.00 divided by the applicable market value. | ||
| If the applicable market value of shares of the Company’s common stock is less than or equal to the initial price, then the conversion rate will be 71.4286 shares of the Company’s common stock per share of the Company’s mandatory convertible preferred stock (the “maximum conversion rate”), which is equal to $1,000.00 divided by the initial price. | ||
| The maximum conversion rate and minimum conversion rate will be subject to anti-dilution adjustments. | ||
Conversion at option
of the holder:
|
Other than during the cash acquisition conversion period, holders of the mandatory convertible preferred stock will have the right to convert the mandatory convertible preferred stock, in whole or in part, at any time prior to the mandatory conversion date, into shares of common stock at the minimum conversion rate of 58.5480 shares of common stock per share of mandatory convertible preferred stock, subject to anti-dilution adjustments. | |
Cash acquisition conversion rate: |
The following table sets forth the cash acquisition conversion rate per share of mandatory convertible preferred stock for each hypothetical stock price and effective date set forth below: |
Sch C-3
| Stock Price on Effective Date | ||||||||||||||||||||||||||||||||||||||||||||||||
| Effective Date | $14.00 | $15.00 | $17.50 | $20.00 | $25.00 | $30.00 | $35.00 | $40.00 | $45.00 | $50.00 | $75.00 | $100.00 | ||||||||||||||||||||||||||||||||||||
11/19/2007 |
59.2213 | 58.8767 | 58.3258 | 58.0679 | 57.9688 | 58.0618 | 58.1809 | 58.2817 | 58.3575 | 58.4121 | 58.5204 | 58.5411 | ||||||||||||||||||||||||||||||||||||
11/15/2008 |
60.4749 | 59.9422 | 59.0455 | 58.5813 | 58.2927 | 58.3072 | 58.3759 | 58.4354 | 58.4767 | 58.5033 | 58.5432 | 58.5473 | ||||||||||||||||||||||||||||||||||||
11/15/2009 |
62.4499 | 61.5412 | 59.9469 | 59.1076 | 58.5658 | 58.5076 | 58.5224 | 58.5360 | 58.5428 | 58.5458 | 58.5480 | 58.5480 | ||||||||||||||||||||||||||||||||||||
11/15/2010 |
71.4286 | 66.6667 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | 58.5480 | ||||||||||||||||||||||||||||||||||||
| If the stock price is in excess of $100.00 per share, then the cash acquisition conversion rate will be the minimum conversion rate, subject to anti-dilution adjustments. If the stock price is less than $14.00 per share, then the cash acquisition conversion rate will be the maximum conversion rate, subject to anti-dilution adjustments. | ||
Cash acquisition dividend make-whole payment: |
For any shares of mandatory convertible preferred stock that are converted during the cash acquisition conversion period, in addition to the shares of common stock issued upon conversion, the Company must, in its sole discretion, either (a) pay holders cash, to the extent it is legally permitted to do so, in an amount equal to the sum of (1) an amount equal to any accrued, cumulated and unpaid dividends on the mandatory convertible preferred stock, whether or not declared (including the pro rata portion of the accrued dividend for the then current dividend period), and (2) the present value of all remaining dividend payments on the mandatory convertible preferred stock through and including the mandatory conversion date (excluding the pro rata portion of the accrued dividend for the then current dividend period), in each case, out of legally available assets (the “cash acquisition dividend make-whole amount”), or (b) increase the number of shares of common stock to be issued on conversion by an amount equal to the cash acquisition dividend make-whole amount, divided by the stock price of shares of the Company’s common stock; provided that, in no event shall the Company increase the number of shares of common stock to be issued in excess of the amount equal to the cash acquisition dividend make-whole amount divided by $9.00, subject to anti-dilution adjustments. The Company may make the election to pay cash or increase the number of shares of its common stock issued upon conversion, in whole or in part. The present value of the remaining dividend payments will be computed using a discount rate equal to 6.50%. | |
Fractional Shares:
|
No fractional shares of the Company’s common stock will be payable to any holder in connection with any conversion |
Sch C-4
| or dividend. In lieu of any fractional share of the Company’s common stock, at the Company’s option, that holder will be entitled to receive either (i) an amount of shares rounded up to the next whole number of shares or (ii) an amount in cash (computed to the nearest cent) equal to the same fraction of the average daily closing price for the applicable dividend reference period. | ||
Net proceeds of the mandatory
convertible preferred stock
offering after underwriters’
discount:
|
Approximately $1.8 billion (approximately $2.1 billion if the underwriters’ overallotment option is exercised in full). | |
Use of proceeds:
|
The Company intends to use the net proceeds from this offering to repay outstanding indebtedness under the Senior Unsecured Interim Loan Agreement incurred to fund a portion of the acquisition of Merck Generics and related acquisition costs. | |
Underwriters’ discount:
|
3.00% | |
Trade date:
|
November 13, 2007 | |
Settlement date:
|
November 19, 2007 | |
CUSIP:
|
000000000 | |
Documentation:
|
The definitive terms of the mandatory convertible preferred stock will be set forth in a resolution of the Finance Committee of the Board of Directors of the Company and an amendment to the Amended and Restated Articles of Incorporation of the Company, as amended, rather than in a certificate of designations as described in the preliminary prospectus supplements. |
The mandatory convertible preferred stock has been approved for listing on the NYSE under the
symbol “MYLPrA”, subject to official notice of issuance.
Common Stock Offering
Title of securities:
|
Common Stock | |
Shares issued:
|
53,500,000 (100% primary) | |
Overallotment option:
|
8,025,000 shares |
Sch C-5
Price to public:
|
$14.00 per share | |
Outstanding common shares
after offering (assuming no
exercise of the
underwriters’ overallotment
option):
|
Approximately 302 million shares (based on the number of shares outstanding as of September 30, 2007, and assuming no exercise of the underwriters’ overallotment option) excluding (a) 26,755,853 shares issuable upon conversion of the Company’s 1.25% senior convertible notes; (b) 26,755,853 shares underlying the Company’s convertible note hedge and warrant transactions associated with the Company’s convertible notes, (c) approximately 133 million shares that will be issuable upon conversion of the 6.50% mandatory convertible preferred stock (assuming no exercise of the underwriters’ overallotment option and based on the maximum conversion rate described above) and (d) approximately 21,805,289 shares issuable upon exercise of outstanding stock options and restricted stock awards. | |
Net proceeds of the
common stock offering
after underwriters’ discount:
|
Approximately $0.7 billion (approximately $0.8 billion if the underwriters’ overallotment option is exercised in full) | |
Use of proceeds:
|
The Company intends to use the net proceeds from this offering to repay outstanding indebtedness under the Senior Unsecured Interim Loan Agreement incurred to fund a portion of the acquisition of Merck Generics and related transaction costs. | |
Underwriters’ discount:
|
3.50% | |
Last sale
(on November 13, 2007):
|
$14.35 | |
Trade date:
|
November 13, 2007 | |
Settlement Date:
|
November 19, 2007 | |
CUSIP:
|
000000000 |
Sch C-6
Information Relating to Both Offerings
Increase in Net Proceeds:
|
Because of the increase in the size of both offerings, the total net proceeds to the Company (after underwriters’ discounts and expenses) are estimated to be approximately $2.5 billion, without giving effect to the exercise of the overallotment options. All net proceeds will be applied to repay indebtedness under the Senior Unsecured Interim Loan Agreement. The disclosure in the final prospectuses will be amended to reflect the fact that the amount of indebtedness under the Senior Unsecured Interim Loan Agreement to be repaid will be greater than set forth in the preliminary prospectus supplements. This includes the disclosure under the “Pro Forma As Adjusted” column in the “Capitalization” section in the final prospectuses, which will be amended to reflect the increased amounts of preferred stock and common stock outstanding and the lower amount of interim loans outstanding after giving effect to the offerings (which in the case of the Interim Loans is expected to be approximately $333.0 million). In addition, the disclosure under the section entitled “Overview of Financial Condition, Liquidity and Capital Resources” in the final prospectuses will be amended to reflect such lower amount of interim loans outstanding after the offerings and the lower amount of scheduled interest payments (in the table that appears under the caption “Our debt maturities” in such section) as a result of such reduction in the amount of interim loans outstanding. | |
Amendment to Description
of Capital Stock:
|
The information in the final prospectuses relating to the description of the Company’s capital stock will be amended to include a reference to the fact that the Company has not elected to opt out of, and therefore is subject to, Subchapter 25F of the BCL (relating to business combinations), which generally delays for five years and imposes conditions upon “business combinations” between an “interested shareholder” and the Company. The term “business combination” is defined broadly to include various transactions between a corporation and an interested shareholder including mergers, sales or leases of specified amounts of assets, liquidations, reclassifications and issuances of specified amounts of additional shares of stock of the corporation. An “interested shareholder” is defined generally as the beneficial owner of at least 20% of a corporation’s voting shares. |
Sch C-7
Appointment of New
Senior Vice President and
Global General Counsel:
|
The Company has appointed Xxxxxx X. Xxxxxxxx as Senior Vice President and Global General Counsel. He was formerly Vice President, General Counsel and Corporate Secretary of Sanofi-Aventis U.S. Inc. Xxxxxx X. Xxxxxxxx, formerly Chief Legal Officer, is remaining with the Company as Special Counsel in the Office of the CEO. |
The issuer has filed a registration statement (including prospectus supplements) with the SEC
for the offerings to which this communication relates. Before you invest, you should read the
prospectus supplements and the accompanying prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about the issuer and
these offerings. You may get these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the
applicable offering will arrange to send you the applicable prospectus supplement if you request it
by calling Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated toll-free at 0-000-000-0000 or
Xxxxxxx, Sachs & Co. at 0-000-000-0000.
Sch C-8
SCHEDULE D
[List of Designated Subsidiaries]
AB Medical PRS B.V.
|
||
Acepharm Ltd. |
||
Aktuapharma N.V. |
||
Allgemeine Beteiligungsgesellschaft Genius Deutschland mbH |
||
Alphapharm Pty. Ltd. |
||
American Triumvirate Insurance Company |
||
APharma BV |
||
Apothecon BV |
||
Aprime NV |
||
Arcana Arzneimittel GmbH |
||
Beacon |
||
Bertek International, Inc. |
||
Brand & Company Limited |
||
Concord Biotech Limited |
||
DAA Pharma NV |
||
Dafeng Mchem Pharmaceutical |
||
Chemical Co. Ltd. |
||
DCI Pharma X.X. |
||
Xxx Limited Partner, Inc. |
||
Xxx, Inc. |
||
Xxx, X.X. |
||
Docpharma Luxembourg S.a.r.1. |
||
Docpharma N.V. |
||
EMD, Inc. |
||
Euro Mylan BV |
||
Farma 1 S.r.1. |
||
Fuzhou Airuike (R&D Co.) |
||
Generics [UK] Ltd. |
||
Generics Pharma Greece E.P.E. |
||
Genpharm General Partner, Inc. |
||
Genpharm Inc. |
||
Genpharm Limited Partner, Inc. |
||
Genpharm, L.P. |
||
Hospithera N.V. |
||
Industrieie Persele Minerton (Proprietary) Limited |
||
Matrix Laboratories B.V. |
||
Matrix Laboratories Inc. |
||
Matrix Laboratories Limited |
||
Matrix Laboratories N.V. |
||
Matrix Laboratories Singapore Pte Ltd. |
||
XxXxxxxxx Laboratories Ltd.(Xxxxxx) |
||
Mchem Research and Development Co. Ltd. |
||
Merck Development Centre Private Limited |
||
Merck dura GmbH |
||
Merck Genericos — Produtos Farmaceuticos, Lda. |
||
Merck Genericos X.X. |
||
Xxxxx Generics Belgium B.V.B.A. |
Sch D-1
Merck Generics France Holding S.A.S.
|
||
Merck Generics GmbH |
||
Merck Generics B.V. |
||
Merck Generics Group B.V. |
||
Merck Generics Italia S.p.A. |
||
Merck Generics Ltd. |
||
Merck Generics RSA (Pty) Ltd. |
||
Merck Generiques Maroc S.A. |
||
Merck Generiques S.C.S. |
||
Merck NM AB |
||
Merck NM ApS |
||
Merck NM AS |
||
Merck NM OY |
||
Merck Seiyaku Ltd. |
||
MLRE LLC |
||
MP Air, Inc. |
||
MP Laboraoties (Mauritius) Ltd. |
||
Mygoldex Pharma Ltd. |
||
Mylan (Gibraltar) 1 Ltd. |
||
Mylan (Gibraltar) 2 Ltd. |
||
Mylan (Gibraltar) 3 Ltd. |
||
Mylan Australia Holding Pty Ltd. |
||
Mylan Australia Pty Ltd. |
||
Mylan Bermuda Ltd. |
||
Mylan Bertek Pharmaceuticals Inc. |
||
Mylan Canada ULC |
||
Mylan Caribe, Inc. |
||
Mylan Delaware Holding Inc. |
||
Mylan Delaware Inc. |
||
Mylan Europe B.V.B.A. |
||
Mylan France SAS |
||
Mylan India Private Ltd. |
||
Mylan International Holdings, Inc. |
||
Mylan LHC Inc. |
||
Xxxxx Xxxxxxxxxx 0 X.X.X. |
||
Xxxxx Xxxxxxxxxx 1 S.a.r.1. |
||
Mylan Luxembourg 2 S.a.r.1. |
||
Mylan Luxembourg 2 S.C.S. |
||
Mylan Luxembourg 3 S.a.r.1. |
||
Mylan Luxembourg 3 S.C.S. |
||
Mylan Luxembourg 0 X.x.x.0 |
||
Xxxxx Xxxxxxxxxx 5 S.a.r.1. |
||
Mylan Pharmaceuticals Inc. |
||
Mylan Singapore Pte. Ltd. |
||
Mylan Technologies Inc. |
||
Nutripharm S.A. |
||
Pacific Pharmaceuticals Ltd. |
||
Prasfarma Oncologicos S.L. |
Sch D-2
Prempharm Inc.
|
||
Qualimed S.A.S. |
||
Scandinavian Pharmaceuticals — Generics AB |
||
Scandpharm Marketing AB |
||
SCP Pharmaceuticals (Pty) Ltd. |
||
Sevipharma NV |
||
Shanghai Fine Source Co. Ltd. |
||
Societe de Participation Pharmaceutique S.A.S. |
||
UDL Laboratories, Inc. |
||
Value Pharma International NV |
||
Vascuare N.V. |
||
Vascumed NV |
||
Xiamen Mchem Laboratories Limited |
||
Xixia Pharmaceuticals (Pty) Ltd. |
||
Mchem Pharma Group Limited |
Sch D-3
SCHEDULE E
[List of Persons Subject to Lock-Up Agreements]
Xxxxxx Xxxxxx
|
||
Xxxxxx Xxxxxxxxx |
||
Xxxxx Xxxxxxx |
||
Xxxxxx X. Xxxxx |
||
Xxxxxx Xxxxxxxxxx |
||
Xxxx Xxxxxx |
||
Xxxxxxx X. Xxxxx |
||
Xxxxxx X. Maroon |
||
Xxxx Xxxxxxxxxx |
||
Xxx Xxxxx |
||
Xxxxx Xxxxxx |
||
X.X. Xxxx |
||
Xxxxxxx X. Xxxxxxxxxx |
||
Xxxxxx X. Xxxxxxxx |
||
Xxxxx Xxxxx |
||
Xxxxxxx Xxxxxx |
||
Xxx Xxxxxx |
||
Xxxxxxx Xxxxx |
||
Xxx Xxxxx |
Sch E-1
Exhibit A
FORM OF OPINION OF COMPANY’S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
Exhibit B
FORM OF OPINION OF XXXXXXX XXXXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
Exhibit C
FORM OF OPINION OF COMPANY’S SPECIAL OUTSIDE PENNSYLVANIA
COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)
COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
Exhibit D
FORM OF OPINION OF COMPANY’S SPECIAL EUROPEAN UNION AND
JAPANESE COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
JAPANESE COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
Exhibit E
FORM OF OPINION OF COMPANY’S SPECIAL CANADIAN COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
-1-
Exhibit F
FORM OF OPINION OF COMPANY’S SPECIAL AUSTRALIAN COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
[In a form reasonable acceptable to the Underwriters]
-1-
Exhibit G
FORM OF LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters to be
named in the within mentioned Purchase Agreements
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Representative of the several Underwriters to be
named in the within mentioned Purchase Agreements
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Re: | Proposed Public Offerings by Mylan Inc. |
Ladies and Gentlemen:
The undersigned, a securityholder and an executive officer and/or director of Mylan Inc., a
Pennsylvania corporation (the “Company”), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) propose to enter into (i) a
purchase agreement (the “Common Purchase Agreement”) with the Company providing for the
public offering of the Company’s common stock, par value $0.50 per share and (ii) a purchase
agreement (the “Convertible Preferred Purchase Agreement” and, together with the Common
Purchase Agreement, the “Purchase Agreements”) providing for the public offering of the
Company’s [ ]% mandatory convertible preferred stock. In recognition of the benefit that such
offerings will confer upon the undersigned as a securityholder and/or an executive officer and/or
director of the Company, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreements that, during a period of 90 days from the date of the Purchase Agreements (the
“Lock-Up Period”), the undersigned will not, without the prior written consent of Xxxxxxx
Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
for the sale of, lend or otherwise dispose of or transfer any of the Company’s common stock or any
securities convertible into or exchangeable or exercisable for the Company’s common stock, whether
now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended (the “1933 Act”), with respect to
any of the foregoing (collectively, the “Lock-Up Securities”) or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap
or transaction is to be settled by delivery of common stock, in cash or otherwise .
Notwithstanding the foregoing, if:
(1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results or becomes aware that material news or a material event will occur during the
16-day period beginning on the last day of the Lock-Up Period,
the restrictions imposed by this lock-up agreement (this “Lock-Up Agreement”) continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event, as applicable, unless Xxxxxxx Xxxxx
waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
Lock-Up Period pursuant to the previous paragraph will be delivered by Xxxxxxx Xxxxx to the Company
(in accordance with Section 13 of the Common Purchase Agreement and Section 12 of the Convertible
Preferred Purchase Agreement) and that any such notice properly delivered will be deemed to have
been given to, and received by, the undersigned. The undersigned further agrees that, prior to
engaging in any transaction or taking any other action that is subject to the terms of this Lock-Up
Agreement during the period from the date of this Lock-Up Agreement to and including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice thereof to the Company
and will not consummate such transaction or take any such action unless it has received written
confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the
previous paragraph) has expired.
Notwithstanding the foregoing and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx, (i) as a bona
fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, or (iii) as a distribution to members, limited partners or
stockholders of the undersigned or to the undersigned’s “affiliates” (as such term is defined in
Rule 501 under the 0000 Xxx) or to any investment fund or other entity controlled or managed by the
undersigned; provided that (1) Xxxxxxx Xxxxx receives a signed Lock-Up Agreement for the
balance of the Lock-Up Period from each donee, trustee, distributee or transferee, as the case may
be; (2) any such transfer shall not involve a disposition for value; (3) such transfers are not
required to be reported in any public report or filing with the Securities and Exchange Commission
(other than reports on Form 5), or otherwise; and (4) the undersigned does not otherwise
voluntarily effect any public filing or report regarding such transfer.
For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the Lock-Up Securities except in compliance with the foregoing
restrictions.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors,
assigns, heirs or personal representatives of the undersigned.
The undersigned understands that, if both the Common Purchase Agreement and Convertible
Preferred Purchase Agreement do not become effective, or if both the Common Purchase Agreement and
Convertible Preferred Purchase Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the common stock
and convertible preferred stock, respectively, to be sold thereunder, the undersigned shall be
released from all obligations under this Lock-Up Agreement.
The undersigned understands that Xxxxxxx Xxxxx is entering into the Purchase Agreements and
proceeding with the offerings in reliance upon this Lock-Up Agreement.
This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
| Very truly yours, | ||||||
| Signature: | ||||||
| Print Name: | ||||||
