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EXHIBIT 4.5
$225,000,000
GENZYME CORPORATION
5 1/4% Convertible Subordinated Notes Due 2005
PURCHASE AGREEMENT
May 19, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
Xxxxx & Company
Xxxxxxx, Sachs & Co.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Genzyme Corporation, a Massachusetts corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule C hereto (the
"Purchasers") U.S.$225,000,000 principal amount of its 5 1/4% Convertible
Subordinated Notes Due 2005 (the "Firm Securities") and also proposes to grant
to the Purchasers an option, exercisable by Credit Suisse First Boston
Corporation ("CSFBC") to purchase an aggregate of up to an additional U.S.
$25,000,000 principal amount of its 5 1/4% Convertible Subordinated Notes Due
2005 ("Optional Securities"), each to be issued under an indenture, dated as of
May 22, 1998 (the "Indenture"), between the Company and State Street Bank and
Trust Company, as Trustee. The Firm Securities and the Optional Securities which
the Purchasers may elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Offered Securities." The United States Securities Act
of 1933, as amended, is herein referred to as the "Securities Act."
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement of even date herewith among the Company and
the Purchasers (the "Registration Rights Agreement"), pursuant to which the
Company agrees to file a registration statement (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission") registering the
resale of the Offered Securities and the Underlying Shares (as defined below)
issuable upon conversion thereof under the Securities Act.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) An offering circular (the "Offering Circular") relating to the
Offered Securities to be offered by the Purchasers has been prepared by the
Company. Such Offering Circular, together with the documents incorporated by
reference therein, the documents listed in Schedule A hereto and any other
document approved by the Company for use in connection with the contemplated
resale of the Offered Securities are hereinafter collectively referred to as the
"Offering Document". As of the date of this
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Agreement, the Offering Document does not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Offering Document based upon written information furnished to
the Company by any Purchaser through CSFBC specifically for use therein, it
being understood and agreed that the only such information is that described as
such in Section 7(b). Except as disclosed in the Offering Document, on the date
of this Agreement, the Company's Annual Report on Form 10-K most recently filed
with the Commission and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended, (the "Exchange Act") do not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such documents, when they were filed
with the Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Massachusetts, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document; and
the Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where the
failure to be so licensed or qualified would not have a material adverse effect
on the condition (financial or other), business, properties or results of
operations of the Company and the Subsidiaries (as defined below) taken as a
whole or of the Company's General Division ("Genzyme General").
(c) The only "significant subsidiaries" of the Company, as defined in
Rule 1-02(w) of the Commission's Regulation S-X, that are corporations are the
subsidiaries of the Company listed on Schedule B hereto (the "Subsidiaries").
Each Subsidiary has been duly incorporated or organized and is existing in good
standing under the laws of the jurisdiction of its incorporation or formation,
with power and authority to own its properties and conduct its business as
described in the Offering Document; and each Subsidiary is duly licensed or
qualified to do business as a foreign corporation or other entity in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such license or qualification, except
where the failure to be so licensed or qualified would not have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and the Subsidiaries taken as a whole or of
Genzyme General; all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and, with respect to each
Subsidiary, is fully paid and nonassessable; and the capital stock of each
Subsidiary owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects. Except as set forth on Schedule B attached
hereto, the Company is the sole record owner, directly or indirectly, of all of
the capital stock of each of its Subsidiaries.
(d) All outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of the Company are,
and, when the Underlying Shares have been delivered and paid for upon conversion
of the Offered Securities in accordance with the Indenture, such Underlying
Shares will have been validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Offering Document; and the
stockholders of the Company have no preemptive or similar rights with respect to
the Underlying Shares. Except as set forth in the
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Offering Document, the Company does not have outstanding, and at the Closing
Date the Company will not have outstanding, any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell, (i) any
Offered Securities, or (ii) any shares of capital stock held by it in any
Subsidiary, or any such warrants, convertible securities or obligations (except
shares issued or issuable pursuant to employee or director benefit plans after
the date as of which information with respect thereto is given in the Offering
Document).
(e) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(f) Neither the Company nor any of its Subsidiaries is in violation of
any statute, rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and the
Subsidiaries taken as a whole or of Genzyme General; and the Company is not
aware of any pending investigation which might lead to such a claim.
(g) The financial statements included or incorporated in the Offering
Document present fairly the financial position of the Company and its
consolidated subsidiaries, Genzyme General, Genzyme Tissue Repair Division
("GTR") and Genzyme Molecular Oncology Division ("GMO") as of the dates shown
and their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis. No
other financial statements or schedules of the Company are required by the Act,
the Exchange Act, the rules and regulations of the Commission under the
Securities Act ("Rules and Regulations") or the rules and regulations of the
Commission under the Exchange Act ("Exchange Act Rules and Regulations") to be
included or incorporated in the Offering Document. Coopers & Xxxxxxx L.L.P. and
Xxxxxx Xxxxxxxx LLP, who have reported on certain of such financial statements,
are independent accountants as required by the Securities Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations, as
applicable.
(h) All contracts described in the Offering Document to which the
Company or any Subsidiary is a party have been duly authorized, executed and
delivered by the Company or such Subsidiary, constitute valid and binding
agreements of the Company or such Subsidiary and are enforceable against the
Company or such Subsidiary in accordance with the terms thereof.
(i) The Indenture has been duly authorized; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below), the Indenture
will have been duly executed and delivered, such Offered Securities will have
been duly executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and the Indenture and
such Offered Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
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and similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(j) When the Offered Securities are delivered and paid for pursuant to
this Agreement on the Closing Date, such Offered Securities will be convertible
into shares ("Underlying Shares") of Genzyme General Division Common Stock, par
value $.01 per share ("GGD Stock"), in accordance with the terms of the
Indenture; the Underlying Shares initially issuable upon conversion of such
Offered Securities have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly issued, fully
paid and nonassessable; the shares of GGD Stock outstanding as of the date
hereof have been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the description thereof
contained in the Offering Document; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities or the Underlying
Shares.
(k) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Purchaser for a
brokerage commission, finder's fee or other like payment in connection with the
sale of the Offered Securities.
(l) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation of
the transactions contemplated by this Agreement in connection with the issuance
and sale of the Offered Securities by the Company, except such as may be
required under state securities laws.
(m) The execution, delivery and performance of the Indenture and this
Agreement and the issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such Subsidiary is a party or by which
the Company or any such Subsidiary is bound or to which any of the properties of
the Company or any such Subsidiary is subject, or the charter or by-laws (or
comparable instruments) of the Company or any such Subsidiary, and the Company
has full power and authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement.
(n) This Agreement has been duly authorized, executed and delivered by
the Company.
(o) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company, conforms in all material respects to the
description thereof in the Offering Document and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and general equity principles.
(p) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all material real properties and
all other material properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by them; and
except
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as disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(q) The Company and its Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole or of
Genzyme General.
(r) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that might
have a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
a whole or of Genzyme General.
(s) The Company and its Subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its Subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and its
Subsidiaries taken as a whole or of Genzyme General. All such intellectual
property rights are valid and enforceable and, to the knowledge of the Company
and its Subsidiaries, are not being infringed by any third parties which
infringement would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole or of Genzyme
General. To the knowledge of the Company, the Company's and its Subsidiaries'
present use of any of the intellectual property rights does not infringe on any
rights of third parties or conflict with any asserted rights of others that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries taken as a whole or of Genzyme General.
(t) The descriptions of the human clinical trials, animal studies and
other preclinical tests being conducted by or on behalf of the Company and its
Subsidiaries and of any license or similar applications relating to products and
services in development contained in the Offering Document (the "Company Studies
and Applications") are accurate and complete in all material respects, and the
Company has no knowledge of any other trials, studies or tests, the results of
which reasonably call into question the results thereof described or referred to
in the Offering Document which have not previously been publicly disclosed by
Genzyme in a press release. Neither the Company nor any Subsidiary has received
any notices or correspondence from the U.S. Food and Drug Administration or any
other governmental agency requiring the termination, suspension or a
modification which would result in a materially adverse change in any Company
Studies and Applications.
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(u) Neither the Company nor any of the Subsidiaries is in violation of
its certificate of incorporation, by-laws or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a default
or acceleration) in the performance of any obligation, agreement or condition
contained in any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or their
respective properties is bound or affected and neither the Company nor any of
the Subsidiaries is in violation of any judgment, ruling, decree, order,
franchise, license or permit known to such counsel or any statute, rule or
regulation applicable to the business or properties of the Company or any of the
Subsidiaries, where such violation or default would have a material adverse
effect on the condition (financial or otherwise), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole or of
Genzyme General.
(v) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties that, if determined adversely
to the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole or of Genzyme General, or would materially and
adversely affect the ability of the Company to perform its obligations under the
Indenture or this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities or the issuance of the Underlying Shares upon
conversion thereof; and no such actions, suits or proceedings are threatened or,
to the Company's knowledge, contemplated.
(w) Except as disclosed in the Offering Document, since the date of the
latest audited financial statements included in the Offering Document there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole or of Genzyme General, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(x) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940, as amended
(the "Investment Company Act") ; and the Company is not and, after giving effect
to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act.
(y) The Company and its affiliates have not taken and will not take,
directly or indirectly, any action designed to cause, or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the GGD Stock to facilitate the
sale or resale of the Offered Securities.
(z) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
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(aa) Assuming the truth and accuracy of the Purchasers'
representations contained in Section 4, the offer and sale of the
Offered Securities by the Company to the several Purchasers will be
exempt from the registration requirements of the Securities Act by
reason of Section 4(2) thereof, and the resale by the Purchasers
pursuant to Section 4(b) hereof will be exempt from the registration
requirements of the Securities Act by reason of Rule 144A thereunder
and Regulation S thereunder ("Regulation S") and, in connection
therewith, it is not necessary to qualify an indenture in respect of
the Offered Securities under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act".)
(bb) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S, by means of
any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Company, its affiliates and any person acting on its
or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(cc) The Company is subject to Section 13 or 15(d) of the Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree to purchase from the Company, at a purchase
price of 97.5% of the principal amount thereof plus accrued interest, if any,
from May 22, 1998 to the Closing Date (as hereinafter defined) the respective
principal amounts of Firm Securities set forth opposite the names of the several
Purchasers in Schedule C hereto.
The Company will deliver against payment of the purchase price the Firm
Securities to be offered and sold by the Purchasers (i) in reliance on Rule 144A
under the Securities Act (the "Firm 144A Securities") issued in the form of one
permanent global security in definitive form without interest coupons deposited
with the Trustee as custodian for DTC and registered in the name of Cede & Co.,
as nominee for DTC, and bearing the legend regarding restrictions on transfer
set forth under "Transfer Restrictions" in the Offering Document and (ii) in
reliance on Regulation S (the "Firm Regulation S Securities") issued in
definitive, fully registered form, in such denominations and registered in such
names as CSFBC requests and bearing the legend relating thereto set forth under
"Transfer Restrictions" in the Offering Document.
Payment for the Firm Securities shall be made by the Purchasers in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of Genzyme Corporation , on May 22, 1998, or at such
other time not later than seven full business days thereafter, as CSFBC and the
Company determine, such time being herein referred to as the "Closing Date,"
against (i) delivery to the Trustee as custodian for DTC of the permanent global
security in definitive form representing all of the Firm 144A Securities and
(ii) delivery to the Purchasers of definitive fully registered certificates
representing all of the Firm Regulation S Securities at the office of Xxxxxx
Xxxxxx & Xxxxxxx at 9:00 A.M. (New York time). The certificates representing the
Firm 144A Securities and the Firm Regulation S Securities will be made available
for checking at least 24 hours prior to the First Closing Date.
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In addition, upon written notice from CSFBC given to the Company not
more than 30 days subsequent to the date of this Agreement, the Purchasers may
purchase all or less than all of the Optional Securities at the purchase price
per principal amount of Offered Securities (including any accrued interest
thereon to the related Optional Closing Date) to be paid for the Firm
Securities. The Company agrees to sell to the Purchasers the principal amount of
Optional Securities specified in such notice and the Purchasers agree to
purchase such Optional Securities. Such Optional Securities shall be purchased
from the Company for the account of each Purchaser in the same proportion as the
number of Firm Securities set forth opposite such Purchaser's name in Schedule C
hereto bears to the total number of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Purchasers only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised not more than twice and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of a payment for the Optional Securities,
being herein referred to as the "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometime referred to as a "Closing Date"), shall be determined by CSFBC
but shall not be later than seven full business days, nor prior to two full
business days except in the case of the First Closing Date for any such Optional
Closing Date , after written notice of election to purchase Optional Securities
is given. The certificates for the Securities evidencing the Optional Securities
being purchased on each Optional Closing Date will be in such denominations and
registered in such names as CSFBC requests and will be made available for
checking and packaging at the above offices of Xxxxxx Xxxxxx & Xxxxxxx at a
reasonable time in advance of such Optional Closing Date.
Payment for the Optional Securities being purchased on each Optional
Closing Date and to be offered and sold by the Purchasers in reliance on Rule
144A (the "Optional 144A Securities") and the Optional Securities being
purchased on such Optional Closing Date and to be offered and sold by the
Purchasers in reliance on Regulation S (the "Optional Regulation S Securities")
shall be made by the Purchasers in Federal (same day) funds by wire transfer to
an account at a bank acceptable to CSFBC drawn to the order of Genzyme
Corporation at 9:00 A.M. (New York time) on such Optional Closing Date against
(i) delivery to the Trustee as custodian for DTC of a permanent global security
in definitive form without coupons representing all of the Optional 144A
Securities and (ii) delivery to the Purchasers of definitive fully registered
certificates representing all of the Optional Regulation S Securities being
purchased on such Optional Closing Date at the office of Xxxxxx Xxxxxx &
Xxxxxxx, or at such other place or places of CSFBC and the Company shall
determine.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities as part of its distribution at any
time only in accordance with Rule 903 or Rule 144A under the Securities Act
("Rule 144A"). Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will
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engage in any directed selling efforts with respect to the Offered Securities,
and such Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation
of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such
Purchaser will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time, or (ii)
otherwise until one year after the earlier of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by Regulation
S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except with the prior written
consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of issue
of the Offered Securities will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
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5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation (other than a required filing of a report under the Exchange
Act) without CSFBC's consent. If, at any time prior to the completion of the
resale of the Offered Securities by the Purchasers, any event occurs as a result
of which the Offering Document as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission. Neither CSFBC's
consent to, nor the Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6. CSFBC will notify the Company when its distribution is
complete.
(b) The Company will furnish to the Purchasers copies of the Offering
Document and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as CSFBC reasonably requests, and the
Company will furnish to CSFBC on the date hereof three copies of the Offering
Document signed by a duly authorized officer of the Company. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to CSFBC (and, upon
request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will cooperate with the Purchasers and their counsel in
the qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such jurisdictions in the
United States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers, provided that the Company will not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any such jurisdiction.
(d) During the period of five years hereafter, the Company will furnish
to CSFBC (and, upon request, to each of the other Purchasers) as soon as
practicable after the end of each fiscal year, a copy of its annual report to
shareholders for such year; and the Company will furnish to CSFBC (and, upon
request, to each of the other Purchasers) (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii) from time
to time, such other information concerning the Company as CSFBC may reasonably
request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer applicable
to the Offered Securities.
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(f) During the period of two years after the Closing Date the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement and the Indenture, including (i) the fees
and expenses of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities, the printing of this Agreement, the Offered
Securities and the Indenture, and the preparation and printing of the Offering
Document and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities ; (iii) the
cost of qualifying the Offered Securities for trading in The Portal(SM) Market
("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising
approved by the Company in connection with the issue of the Offered Securities;
(v) any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions in the United States and Canada as CSFBC designates and
the printing of memoranda relating thereto; (vi) any fees charged by investment
rating agencies for the rating of the Offered Securities in the event such a
rating is requested by the Company; provided, that the Company agrees that in no
event will the Purchasers be obligated to pay any such rating agency fees; and
(vii) expenses incurred in distributing the Offering Document (including any
amendments and supplements thereto) to the Purchasers.
(i) In connection with the Offering, until CSFBC shall have notified
the Company of the completion of the resale of the Offered Securities, neither
the Company nor any of its affiliates has or will, either alone or with one or
more other persons, bid for or purchase for any account in which it or any of
its affiliates has a beneficial interest any Offered Securities or attempt to
induce any person to purchase any Offered Securities; and neither it nor any of
its affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
(j) The Company will not offer, sell, contract to sell, announce its
intention to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Securities Act
relating to (other than pursuant to the Registration Rights Agreement), (i) any
shares of its GGD Stock, or securities (other than GTR Stock, GMO Stock or GGD
Debentures (as defined in the Offering Circular) into which outstanding GMO
Notes (as defined in the Offering Circular) are exchanged in accordance with
their terms) convertible into or exchangeable or exercisable for any shares of
GGD Stock, other than pursuant to employee and director benefit plans or upon
the exercise of outstanding warrants or conversion of the Notes or the GGD
Debentures or (ii) any Notes or other United States dollar-denominated debt
securities (other than GGD Debentures into which outstanding GMO Notes are
exchanged in accordance with their terms), issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue without the
prior written consent of CSFBC for a period of 90 days after the date of the
Offering Document; provided that prior to the expiration of such 90-day period,
the Company may engage in any of the foregoing activities in connection with an
acquisition using GGD Stock or securities convertible into or exchangeable or
exercisable for GGD Stock, provided that the terms of any such acquisition shall
not provide
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for the issuance of any such shares or securities prior to the expiration of
such period without the prior written consent of CSFBC.
(k) The Company will not at any time offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition would
cause the exemption afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable to the offer and
sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Firm Securities on the First
Closing Date and the Optional Securities on each Optional Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated as of the
Closing Date, of Coopers & Xxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Securities Act and the applicable
published Rules and Regulations and to the effect that:
(i) in their opinion the financial statements examined by them
and incorporated by reference in the Offering Circular and included in
the Exchange Act Reports comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and
the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements, if any, incorporated by reference in the Offering
Circular and included in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements,
if any, of the Company, Genzyme General, GTR and GMO, inquiries of
officials of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements included in
the Exchange Act Reports do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the related published
Rules and Regulations or any material modifications should
be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than three business days prior to the date of
such letter, there was any change in the capital stock,
other than changes due to the issuance of common stock in
connection with the exercise of stock options, stock
warrants or the employee stock purchase plan, or any
increase in long-term debt of the Company and its
con-
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solidated subsidiaries, Genzyme General, GTR or GMO or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets of the Company, Genzyme General, GTR or GMO, as
compared with amounts shown on the latest balance sheet
included in the Exchange Act Reports; or
(C) for the period from the closing date of the
latest statements of operations included in the Exchange Act
Reports to the closing date of the latest available statements
of operations read by such accountants there were any
decreases, as compared with the corresponding period of the
previous year in the total or per share amounts of
consolidated net income or in the ratio of earnings to fixed
charges,
except in all cases set forth in clauses (iii)(B) and (iii)(C) above
for changes, increases or decreases which the Exchange Act Reports
disclose have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information incorporated in the Offering Circular and included in the
Exchange Act Reports (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries,
Genzyme General, GTR or GMO subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) except for changes relating to events described in
clauses (ii) (C), (D) and (E) of this paragraph, a change in U.S. or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) (A) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries which, in
the judgment of a majority in interest of the Purchasers including CSFBC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (D)
any banking moratorium declared by U.S. Federal or New York authorities; or (E)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of a majority in
interest of the Purchasers including CSFBC, the effect of any such outbreak,
escalation, declaration,
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calamity or emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated such Closing
Date, of Xxxxxx & Dodge LLP, counsel for the Company, that:
(i) Each of the Company and Genzyme Securities Corporation
("GSC") and Deknatel Xxxxxxx Xxxxxx, Inc. ("DSP" and together with GSC,
the "Domestic Subsidiaries") is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. Each of the Company and the Domestic Subsidiaries is
duly qualified to do business as a foreign corporation in good standing
in all jurisdictions in which the nature of the activities conducted by
it or the character of the assets owned or leased by it makes such
qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and the Subsidiaries taken as a whole or of Genzyme General. Each of
the Company and the Domestic Subsidiaries has full corporate power and
authority to own or lease all the assets described as or known to such
counsel to be owned or leased by it and to conduct its business as
described in the Offering Document.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company. The Offered Securities have been duly
authorized and executed by the Company. The Offered Securities
delivered on such Closing Date conform in all material respects to the
description thereof contained in the Offering Document. The Indenture
constitutes and, upon authentication, issuance and delivery of the
Offered Securities against payment therefor, the Offered Securities
delivered on such Closing Date will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(iii) The Offered Securities delivered on such Closing Date
are convertible into the Underlying Shares of the Company in accordance
with the terms of the Indenture; the Underlying Shares initially
issuable upon conversion of such Offered Securities delivered on such
Closing Date have been duly authorized and reserved for issuance upon
such conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable. The outstanding shares of the
Company's capital stock have been duly authorized and validly issued,
are fully paid and nonassessable, are not subject to any preemptive or
similar right.
(iv) The stockholders of the Company have no preemptive rights
with respect to the Offered Securities or the Underlying Shares.
(v) Except as disclosed in the Offering Document or pursuant
to the agreements listed on Schedule C, there are no contracts,
agreements or understandings known to such counsel between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act to include shares of GGD
Stock in the securities registered pursuant to a registration statement
filed by the Company under the Act.
(vi) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required in connection with the authorization, issu-
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ance, transfer, sale or delivery of the Offered Securities by the
Company in the manner contemplated by this Agreement or the issuance of
the Underlying Shares by the Company, in connection with the execution,
delivery and performance of this Agreement by the Company or in
connection with the taking by the Company of any action contemplated
thereby, except such as may be required under state securities laws.
(vii) The authorized capital stock of the Company is as set
forth in the Offering Document. The description of the Company's
capital stock and the Underlying Shares contained in the Offering
Document conforms in all material respects to the terms thereof
contained in the Company's articles of organization.
(viii) No registration under the Act of the Offered Securities
is required in connection with the sale of the Offered Securities to
the several Purchasers as contemplated by this Agreement and the
Offering Document or in connection with the initial resale of the
Offered Securities by the Purchasers in accordance with Section 4 of
this Agreement, and prior to the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights
Agreement), the Indenture is not required to be qualified under the
TIA, in each case assuming (i) (A) that the purchasers who buy such
Offered Securities in the initial resale thereof are qualified
institutional buyers as defined in Rule 144A promulgated under the Act
or (B) that the offer or sale of the Offered Securities is made in an
offshore transaction as defined in Regulation S, (ii) the accuracy of
the Company's representations contained in this Agreement regarding the
absence of general advertising or general solicitation in connection
with the sale of such Offered Securities to the Purchasers and the
initial resale thereof, and (iii) the accuracy of the Purchasers'
representations set forth in Section 4 of this Agreement and the due
performance by the Purchasers of their agreements set forth in that
section.
(ix) Such counsel has participated in the preparation of the
Offering Document. Except as explicitly provided in such opinion, such
counsel has not undertaken to verify independently the facts disclosed
in the Offering Document (including any documents incorporated by
reference therein). However, in the course of such participation,
nothing has come to such counsel's attention which has caused them to
believe that, as of the date hereof and as of such Closing Date, the
Offering Document, or any amendment or supplement thereto including any
documents incorporated by reference into the Offering Document,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading (except that such
counsel need express no opinion as to financial statements, schedules
and other financial or statistical data contained in the Offering
Document or incorporated by reference therein).
(x) Such counsel has reviewed all contracts or other
agreements referred to in the Offering Document (including the
contracts referred to in the documents incorporated by reference
therein set forth in such opinion, as agreed upon between such counsel
and counsel for the Purchasers and the descriptions thereof (insofar as
such descriptions constitute a summary of the legal matters referred to
therein) are accurate in all material respects (except that such
counsel need express no opinion as to any descriptions thereof
appearing in the financial statements, schedules and other financial or
statistical data contained in the Offering Document or incorporated by
reference therein). Such counsel does not know of any contracts or
other documents required to be
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filed as an exhibit to any document incorporated by reference in the
Offering Circular which have not been so filed.
(xi) The Company has full corporate power and authority to
enter into this Agreement, and this Agreement has been duly authorized,
executed and delivered by the Company.
(xii) The execution, delivery and performance of the Indenture
and this Agreement by the Company, the consummation by the Company of
the transactions herein contemplated and the compliance by the Company
with the terms of this Agreement do not and will not result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or GSC pursuant to the terms or provisions
of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default or result in the acceleration of
any obligation under, the charter or by-laws of the Company or any of
the Domestic Subsidiaries, or, to the knowledge of such counsel, any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument to which
the Company or GSC is a party or by which either the Company's or GSC's
respective properties is bound or affected, or any judgment, ruling,
decree or order known to such counsel or any statute, rule, order or
regulation applicable to the business or properties of the Company or
GSC. The opinion regarding violations of contracts of the Company may
be limited to violations that would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement
or that would have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and the Subsidiaries taken as a whole or of Genzyme
General. In addition, such counsel need not express any opinion as to
the securities or Blue Sky laws of any jurisdiction other than the
United States.
(xiii) Delivery of the Offered Securities will pass valid and
marketable title thereto free and clear of any liens, encumbrances or
claims to the Purchasers if they have purchased such Offered Securities
in good faith without knowledge or reason to know of any adverse claims
thereto and such counsel is not aware of any adverse claim with respect
thereto.
(xiv) Such counsel is not aware of any legal or governmental
proceeding pending or threatened against the Company or the
Subsidiaries of a character required to be disclosed in the Offering
Circular or any document incorporated therein by reference by the
Securities Act, the Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations, other than those that may be
described therein, nor is such counsel aware of any such proceeding in
which an unfavorable ruling, decision or finding might individually or
in the aggregate materially and adversely affect the ability of the
Company to perform its obligations under this Agreement.
(xv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, including the issuance of
the Underlying Shares upon conversion of the Offered Securities, and
the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
In rendering the foregoing opinion, such counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Purchasers' counsel) of other counsel reasonably
acceptable to Purchasers' counsel as to matters governed by the laws of
ju-
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risdictions other than the United States, the Commonwealth of Massachusetts or
the General Corporation Law of the State of Delaware, and as to matters of fact,
upon certificates of officers of the Company and of government officials;
provided that such counsel shall state that the opinion of any other counsel is
in form satisfactory to such counsel and, in such counsel's opinion, such
counsel and the Purchasers are justified in relying on such opinions of other
counsel. Copies of all such opinions and certificates shall be furnished to
counsel to the Purchasers on the Closing Date. Such counsel may state that they
are not passing upon any matters relating to patents, trademarks or state and
federal laws relating to the provision of human health care products and
services. For purposes of the opinion set forth in the last sentence of
paragraph (iii), such counsel may assume that all of the shares issued under the
Company's employee and director stock plans have been issued in compliance with
the terms of such plans and all shares issued upon the exercise of warrants have
been issued in compliance with the terms of such warrants. Such counsel may also
state that their opinion on enforceability of the Indenture and the Notes is
rendered as if Massachusetts law applied to such agreements.
(d) The Purchasers shall have received from Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Offered Securities, the Offering Document,
the exemption from registration for the offer and sale of the Offered Securities
by the Company to the several Purchasers and the resales by the Purchasers as
contemplated hereby and other related matters as CSFBC may require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(e) The Purchasers shall have received a certificate, dated as of such
Closing Date, of the President or the Executive Vice President and Chief Legal
Officer and, a principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the date of
the most recent financial statements in the Exchange Act Reports, there has been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole except as set forth in or contemplated by the Exchange Act Reports or as
described in such certificate.
(f) The Purchasers shall have received a certificate, dated the Closing
Date, of the principal financial or accounting officer of DSP in which such
officer shall state that, to the best of his knowledge after reasonable
investigation, the execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions therein contemplated and the
compliance by the Company with the terms of this Agreement do not and will not
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of DSP pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default or result in the acceleration of any obligation under, the charter or
by-laws of DSP or, to the knowledge of such officer, any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other agreement
or instrument to which DSP is a party or by which its properties is bound or
affected, or any judgment, ruling, decree or order known to such officer or any
statute, rule or regulation applicable to the business or properties of DSP,
other than the securities or blue sky laws of any jurisdiction other than the
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United States or the varying states therein, except as set forth in or
contemplated by the Offering Document or as described in such
certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, addressed to the Purchasers and signed by Xxxxx Xxxxx, in
his capacity as Executive Vice President and Chief Legal Officer of the
Company, in form and substance acceptable to the Purchasers relating to
the Company's annual report on Form 10-K.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive compliance with any conditions
to the obligations of the Purchasers hereunder, whether in respect of an
Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
the Exchange Act Reports, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchasers
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchasers consists
of the following information in the Offering Document: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the Purchasers,
the legend concerning over-allotments and stabilizing on the inside front cover
page and information contained in the third sentence of the second paragraph,
the sixth and eighth paragraphs, the third sentence of the ninth paragraph and
the eleventh paragraph under the caption "Plan of Distribution."
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(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action. An indemnifying party will not be liable for any
settlement of any action or claims effected without its written consent;
provided, however, that such consent will not be unreasonably withheld.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person,
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if any, who controls any Purchaser within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Purchasers under this Section shall
be in addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate principal amount of
Offered Securities that such defaulting Purchaser or Purchasers agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Securities that the Purchasers are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Purchasers, but if no
such arrangements are made by such Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Purchasers
agreed but failed to purchase on such Closing Date. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities that the Purchasers are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement shall not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Purchaser" includes
any person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the occurrence of any event specified in clause (C), (D) or (E) of
Section 6(b)(ii), the Company will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers c/o Credit Suisse First Boston Corporation, at Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Xxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000, Attention: Chief Financial Officer.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to en-
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force the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were
parties thereto.
12. Representations of Purchasers. CSFBC will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Purchasers in accordance with its terms.
Very truly yours,
GENZYME CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXX & COMPANY
XXXXXXX, XXXXX & CO.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ W. Xxxxxx Xxxx
--------------------------
Name: W. Xxxxxx Xxxx
Title: Managing Director
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SCHEDULE A
NONE.
24
SCHEDULE B
Subsidiary % Owned by Genzyme
---------- ------------------
Deknatel, Snowden, Pencer, Inc. 100%
Genzyme BV 100%
Genzyme Limited 100%
Genzyme Securities Corporation 100%
25
SCHEDULE C
Purchasers Principal Amount of
---------- Firm Securities
-------------------
Credit Suisse First Boston Corporation................. $180,000,000
Xxxxx & Company........................................ 22,500,000
Xxxxxxx, Sachs & Co.................................... 22,500,000
------------
Total.............. $225,000,000
============
