Alere Inc. $400,000,000 8.625% Senior Subordinated Notes due 2018 PURCHASE AGREEMENT
$400,000,000
8.625% Senior Subordinated Notes due 2018
September
15, 2010
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& COMPANY, INC.
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SACHS & CO.
CITIGROUP
GLOBAL MARKETS INC.
As
Representatives of the several Initial Purchasers
c/o ▇▇▇
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▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Ladies
and Gentlemen:
Introductory. Alere
Inc., a Delaware corporation (formerly, Inverness Medical Innovations, Inc., the
“Company”), proposes to
issue and sell to the several initial purchasers named in Schedule A (the
“Initial Purchasers”)
$400,000,000 aggregate principal amount of its 8.625% senior subordinated
unsecured notes due 2018 (the “ Original Notes”). The
Company’s obligations under the Original Notes and the Indenture (as defined
below) will be, jointly and severally, unconditionally guaranteed (the “Guarantees”), on a senior
subordinated unsecured basis, by each of the Subsidiaries (as defined below)
listed on the signature pages hereto (collectively, the “Guarantors,” and, together
with the Company, the “Issuers”). The
Original Notes and the Guarantees are referred to herein as the “Securities.” The respective
principal amounts of the Original Notes to be so purchased by the several
Initial Purchasers are set forth opposite their names in Schedule A
hereto. The Original Notes are to be issued under an indenture dated
as of May 12, 2009 (the “Base
Indenture”) as supplemented by a ninth supplemental indenture
(collectively, the “Indenture”) to be dated as of
the Closing Date (as defined below), by and between the Issuers and U.S. Bank
National Association, as Trustee (the “Trustee”).
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& Company, Inc. (“Jefferies”), ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. (“GS”) and
Citigroup Global Markets Inc. (“Citi”) have agreed to act as
representatives of the several Initial Purchasers (in such capacity, the “Representatives”) in
connection with the offering and sale of the Securities.
The
Securities will be offered and sold to the Initial Purchasers pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the “Securities
Act”). The Issuers have prepared a preliminary offering
memorandum, dated as of September 13, 2010 (the “Preliminary Offering
Memorandum”), and a pricing supplement thereto dated the date hereof (the
“Pricing Supplement”).
The Preliminary Offering Memorandum and the Pricing Supplement are herein
referred to as the “Pricing
Disclosure Package.” Promptly after the execution of this
Purchase Agreement (this “Agreement”), the Issuers will
prepare a final offering memorandum dated the date hereof (the “Final Offering
Memorandum”). As used herein, “Applicable Time” is 4:45 p.m.
(New York time) on September 15, 2010. Unless stated to the contrary,
any references herein to the terms “Pricing Disclosure Package” and “Final
Offering Memorandum” shall be deemed to refer to and include any information
filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the
Applicable Time and incorporated by reference therein, and any references herein
to the terms “amend,” “amendment” or “supplement” with respect to the Final
Offering Memorandum shall be deemed to refer to and include any information
filed under the Exchange Act subsequent to the Applicable Time that is
incorporated by reference therein. All references in this Agreement
to financial statements and schedules and other information which are
“contained,” “included” or “stated” (or other references of like import) in the
Pricing Disclosure Package (including the Preliminary Offering Memorandum) or
Final Offering Memorandum shall be deemed to mean and include all such financial
statements and schedules and other information which are or are deemed to be
incorporated by reference in the Pricing Disclosure Package or Final Offering
Memorandum, as the case may be.
The
Initial Purchasers have advised the Issuers that the Initial Purchasers intend,
as soon as they deem practicable after this Agreement has been executed and
delivered, to resell (the “Exempt Resales”) the
Securities in private sales exempt from registration under the Securities Act on
the terms set forth in the Pricing Disclosure Package, solely to (i) persons
whom the Initial Purchasers reasonably believe to be “qualified institutional
buyers” (“QIBs”), as
defined in Rule 144A under the Securities Act (“Rule 144A”), in accordance
with Rule 144A and (ii) other eligible purchasers pursuant to offers and sales
that occur outside the United States within the meaning of Regulation S under
the Securities Act (“Regulation
S”) in accordance with Regulations S (the persons specified in clauses
(i) and (ii), the “Eligible
Purchasers”).
Holders
(including subsequent transferees) of the Securities will have the registration
rights under the registration rights agreement (the “Registration Rights
Agreement”), among the Issuers and the Initial Purchasers, to be dated
the Closing Date and in form and substance mutually satisfactory to the Initial
Purchasers and the Company, substantially in the form of the Issuers’
registration rights agreement dated as of September 28, 2009 with such changes
as are necessary due to current law and to substantively match the disclosure
regarding the Registration Rights Agreement in the Pricing Disclosure
Package. Under the Registration Rights Agreement, the Issuers will
agree to (i) file with the Securities and Exchange Commission (the “Commission”) a registration
statement under the Securities Act (the “Exchange Offer Registration
Statement”) relating to a new issue of debt securities, the “Exchange Notes” and, together
with the Original Notes, the “Notes”), guaranteed by the
guarantors under the Indenture, to be offered in exchange for the Original Notes
and the Guarantees thereof (the “Exchange Offer”) and issued
under the Indenture or an indenture substantially identical to the Indenture
(including the ninth supplemental indenture to the Base Indenture), (ii) use
their commercially reasonable efforts to cause the Exchange Offer Registration
Statement to become effective and (iii) use their commercially reasonable
efforts to consummate the Exchange Offer, all within the time periods specified
in the Registration Rights Agreement.
This
Agreement, the Notes, the Guarantees, the Indenture and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the “Note
Documents.” The issuance and sale of the Securities are
referred to as the “Transactions.”
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The
Issuers hereby confirm their respective agreements with the Initial Purchasers
as follows:
Section
1. Representations and
Warranties. (i) The Issuers hereby represent and warrant to each Initial
Purchaser, as of the date of this Agreement and as of the Closing Date (as
hereinafter defined) and jointly and severally covenant with each Initial
Purchaser (references in this Section 1 to the “Offering Memorandum” are to
(x) the Pricing Disclosure Package in the case of representations and warranties
made as of the date hereof and (y) the Final Offering Memorandum in the case of
representations and warranties made as of the Closing Date), as
follows:
(a) Accuracy of Notes
Documents. Neither the Pricing Disclosure Package, as of the
date hereof or as of the Closing Date, nor the Final Offering Memorandum, as of
its date or (as amended or supplemented in accordance with Section 3(c), if
applicable) as of the Closing Date, contains any untrue statement of a material
fact or omits 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; provided, however, that the Issuers
make no representation or warranty with respect to information relating to the
Initial Purchasers contained in or omitted from the Pricing Disclosure Package,
the Final Offering Memorandum or any amendment or supplement thereto in reliance
upon and in conformity with information furnished to the Company in writing by
or on behalf of any Initial Purchaser through the Representatives expressly for
inclusion in the Pricing Disclosure Package, the Final Offering Memorandum or
any amendment or supplement thereto, as the case may be. No order
preventing the use of the Preliminary Offering Memorandum, the Pricing
Supplement or the Final Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Securities
Act, has been issued or, to the Company’s knowledge, has been
threatened.
(b) Distribution of Note
Documents. The Company (including its agents and
representatives, other than the Initial Purchasers in their capacity as such)
has not prepared, made, used, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any written communication
that constitutes an offer to sell or solicitation of an offer to buy the
Securities (each such communication by the Company or its agents and
representatives an “Issuer
Written Communication”) other than (i) the Pricing Disclosure Package and
(ii) the Final Offering Memorandum. Each such Issuer Written
Communication, when taken together with the Pricing Disclosure Package, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) Class of
Securities. There are no securities of the Issuers that are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated interdealer
quotation system that are of the same class, within the meaning of Rule 144A as
the Securities.
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(d) The Purchase
Agreement. This Agreement has been duly and validly
authorized, executed and delivered by, and is a valid and binding agreement of,
each Issuer, enforceable against it in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable law and except
as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (all such exceptions collectively, the “Enforceability
Exceptions”). This Agreement conforms in all material respects
to the description thereof in the Pricing Disclosure Package.
(e) Authorization of the
Indenture. The Indenture has been duly and validly authorized
by each Issuer and, when duly executed and delivered by the Issuers (assuming
the due authorization, execution and delivery thereof by the Trustee), will be a
legally binding and valid obligation of each such Issuer, enforceable against it
in accordance with its terms, except as the enforcement thereof may be limited
by Enforceability Exceptions. The Indenture, when executed and
delivered, will conform in all material respects to the description thereof in
the Pricing Disclosure Package. The Base Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
(f) Authorization of the Notes.
The Original Notes have been duly and validly authorized for issuance and sale
to the Initial Purchasers by the Company and, when issued, authenticated by the
Trustee, and delivered by or on behalf of the Company against payment therefor
by the Initial Purchasers in accordance with the terms of this Agreement and the
Indenture, the Original Notes will be legally binding and valid obligations of
the Company, entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as the enforcement thereof
may be limited by the Enforceability Exceptions. The Original Notes,
when issued, authenticated by the Trustee and delivered by or on behalf of the
Company, will conform in all material respects to the description thereof in the
Offering Memorandum. The Exchange Notes have been, or on or before
the Closing Date will be, duly and validly authorized for issuance by the
Company, and when issued, authenticated by the Trustee and delivered by or on
behalf of the Company in accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and the applicable indenture, the Exchange Notes
will be legally binding and valid obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by the
Enforceability Exceptions.
(g) Authorization of the
Guarantees. Each Guarantee has been duly and validly
authorized by the applicable Guarantor and, when the Original Notes are issued
and delivered by or on behalf of the Company and authenticated by the Trustee
against payment therefor by the Initial Purchasers in accordance with the terms
of this Agreement and the Indenture, will be legally binding and valid
obligations of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except that enforceability thereof may be limited by the
Enforceability Exceptions. Each Guarantee, when the Original Notes
are issued, authenticated by the Trustee and delivered by or on behalf of the
Company, will conform in all material respects to the description thereof in the
Offering Memorandum. Each guarantee of the Exchange Notes has been
duly and validly authorized by the applicable Guarantor and, when the Exchange
Notes are issued, authenticated by the Trustee and delivered by or on behalf of
the Company in accordance with the terms of the Registration Rights Agreement,
the Exchange Offer and the applicable indenture, will be legally binding and
valid obligations of such Guarantor, enforceable against it in accordance with
its terms, except as the enforceability thereof may be limited by the
Enforceability Exceptions.
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(h) Authorization of the Registration
Rights Agreement. The Registration Rights Agreement has been
duly and validly authorized by each Issuer and, when duly executed and delivered
by the Issuers (assuming the due authorization, execution and delivery thereof
by the Initial Purchasers), will constitute a valid and legally binding
obligation of each such Issuer, enforceable against it in accordance with its
terms, except that (A) the enforcement thereof may be limited by the
Enforceability Exceptions and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations. The Registration Rights Agreement, when executed and
delivered, will conform in all material respects to the description thereof in
the Offering Memorandum.
(i) No Material Adverse
Change. Except as otherwise disclosed in the Pricing
Disclosure Package, subsequent to the respective dates as of which information
is given in Pricing Disclosure Package: (i) there has been no
material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or not arising
from transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one entity, have not
incurred any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material transaction
or agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind (other than regular quarterly dividends on
the Company’s Series B Convertible Perpetual Preferred Stock) declared, paid or
made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any class
of capital stock.
(j) Independent
Accountants. To the Company’s knowledge, BDO USA, LLP, who
have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules included and incorporated by reference in the Offering
Memorandum, and PricewaterhouseCoopers LLP are
(i) independent public or certified public accountants as required by the
Securities Act and the Exchange Act, (ii) in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X and (iii) a registered public accounting firm as defined by the
Public Company Accounting Oversight Board (the “PCAOB”) whose registration has
not been suspended or revoked and who has not requested such registration to be
withdrawn.
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(k) Preparation of the Financial
Statements. The financial statements and supporting schedules
included and incorporated by reference in the Offering Memorandum present fairly
the consolidated financial position of the Company and its subsidiaries (or its
applicable subsidiaries) as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. Such
financial statements and supporting schedules have been prepared in conformity
with generally accepted accounting principles as applied in the United States
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. The financial data set
forth in the Offering Memorandum under the caption “Summary Consolidated
Financial Information” fairly present the information set forth therein on a
basis consistent with that of the audited financial statements included and
incorporated by reference in the Offering Memorandum. The pro forma
condensed financial statements of the Company and its subsidiaries and the
related notes thereto included and incorporated by reference in the Offering
Memorandum present fairly the information contained therein, have been prepared
in accordance with the Commission’s rules and guidelines with respect to pro
forma financial statements and have been properly presented on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. To the
Company’s knowledge, no person who has been suspended or barred from being
associated with a registered public accounting firm, or who has failed to comply
with any sanction pursuant to Rule 5300 promulgated by the PCAOB, has
participated in or otherwise aided the preparation of, or audited, the financial
statements, supporting schedules or other financial data included and
incorporated by reference in the Offering Memorandum.
(l) Company’s Accounting System.
The Company makes and keeps accurate books and records and maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(m) Incorporation and Good Standing of
the Company and its Subsidiaries. Each of the Company and its
subsidiaries has been duly incorporated or organized, as the case may be, and is
validly existing as a corporation, partnership or limited liability company, as
applicable, in good standing under the laws of the jurisdiction of its
incorporation or organization and has the power and authority (corporate or
other) to own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum and, in the case of each Issuer, to enter
into and perform its obligations under this Agreement. Each of the
Company and the subsidiaries of the Company set forth on Schedule B attached
hereto (each a “Subsidiary” and, collectively,
the “Subsidiaries”) is
duly qualified as a foreign corporation, partnership or limited liability
company, as applicable, 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 to be so qualified and in good standing would not, individually or
in the aggregate, result in a Material Adverse Change. Each
“significant subsidiary” (as such term is defined in Rule 1-02 of Regulation
S-X) of the Company is set forth on Schedule B attached
hereto. All of the issued and outstanding capital stock or other
equity or ownership interests of each Subsidiary wholly owned by the Company or
any other Subsidiary have been duly authorized and validly issued, are (in the
case of capital stock) fully paid and nonassessable and are owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or adverse claim other than (A)
the security interests created by (1) that certain First Lien Credit Agreement
dated as of June 26, 2007 among, inter alia, the Company, the lenders party
thereto and General Electric Capital Corporation as administrative agent and (2)
that certain Second Lien Credit Agreement dated as of June 26, 2007 among, inter
alia, the Company, the lenders party thereto and General Electric Capital
Corporation as administrative agent, in each case, including any notes,
guarantees, collateral and security documents, instruments and agreements
executed in connection therewith (the “Senior Credit Documents”) and
(B) any other liens or security interests permitted by the Senior Credit
Documents. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than (i) the subsidiaries listed
in Exhibit 21.1 to the Company’s Annual Report on Form 10-K/A for the fiscal
year ended December 31, 2009 and the subsidiaries listed in Schedule B attached
hereto and (ii) such other entities omitted from Exhibit 21.1 to the Company’s
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2009 or
Schedule B
attached hereto which, when such omitted entities are considered in the
aggregate as a single subsidiary, would not constitute a “significant
subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X. All
subsidiaries of the Company that are guarantors of the Senior Credit Documents
and organized under the laws of a state of the United States are Guarantors,
other than SPDH, Inc.
(n) Capitalization and Other Capital
Stock Matters. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Offering Memorandum in the Company’s
balance sheet as of June 30, 2010 (other than for subsequent issuances, if any,
pursuant to employee benefit plans described in the Offering Memorandum or upon
the exercise of outstanding options or warrants described in the Offering
Memorandum). All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding equity interests of the
Company was issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase securities of the
Company. All outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of the
Company are as set forth and accurately and fairly described, in all material
respects, in the Offering Memorandum. The description of the
Company’s stock option, stock bonus and other stock plans or arrangements, and
the options or other rights granted thereunder, set forth in the Offering
Memorandum accurately and fairly presents, in all material respects, the
information required to be shown with respect to such plans, arrangements,
options and rights.
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(o) Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws, partnership agreement or operating
agreement or similar organizational document, as applicable, or is in default
(or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound (including, without limitation, any credit
agreement, indenture, pledge agreement, security agreement or other instrument
or agreement evidencing, guaranteeing, securing or relating to indebtedness of
the Company or any of its subsidiaries), or to which any of the property or
assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), except
for such Defaults as would not, individually or in the aggregate, result in a
Material Adverse Change. The Issuers’ execution, delivery and
performance of this Agreement, the Indenture and the Registration Rights
Agreement, the consummation by the Issuers of the Transactions contemplated
hereby and by the Offering Memorandum and the issuance and sale of the
Securities to be sold by the Issuers (i) have been duly authorized by all
necessary corporate or other organizational action and will not result in any
violation of the provisions of the charter or by-laws, partnership agreement or
operating agreement or similar organizational document of the Company or any
subsidiary, as applicable, (ii) will not conflict with or constitute a breach
of, or Default or a Debt Repayment Triggering 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, or
require the consent of any other party to, any Existing Instrument (other than
requiring the consent of General Electric Capital Corporation as administrative
agent under the respective Senior Credit Documents and (iii) will not result in
any violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary, except, with respect to
clauses (ii) and (iii), for such conflicts, breaches, Defaults, Debt Repayment
Triggering Events, liens, charges, encumbrances or violations as would not,
individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Issuers’ execution, delivery and
performance of this Agreement and the consummation by the Issuers of the
Transactions contemplated hereby and by the Offering Memorandum, except (1) such
as have been obtained or made by the Company or the Trustee and are in full
force and effect under the Securities Act or the Trust Indenture Act, (2) such
as may be required under applicable state securities or blue sky laws, (3) such
as may be required from the Financial Industry Regulatory Authority (“FINRA”) and (4) as
contemplated by the Registration Rights Agreement with respect to the Exchange
Offer. As used herein, a “Debt Repayment Triggering
Event” means any event or condition which gives, or with the giving of
notice or lapse of time would give, 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.
(p) No Material Actions or
Proceedings. Except as otherwise disclosed in the Offering
Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company’s knowledge, threatened (i) against or affecting the
Company or any of its subsidiaries, (ii) which have as the subject thereof any
officer or director of, or property owned or leased by, the Company or any of
its subsidiaries or (iii) relating to environmental or discrimination matters,
where in any such case (A) any such action, suit or proceeding, if determined
adversely to the Company, such subsidiary or such officer or director, would
reasonably be expected to result in a Material Adverse Change or, individually
or in the aggregate, adversely affect the consummation of the transactions
contemplated by this Agreement or (B) any such action, suit or proceeding is or
would be material in the context of the sale of Securities. No
material labor dispute with the employees of the Company or any of its
Subsidiaries exists or, to the Company’s knowledge, is threatened or
imminent.
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(q) Intellectual Property
Rights. To the Company’s knowledge, the Company owns,
possesses or can acquire on reasonable terms sufficient trademarks,
servicemarks, trade names, patents, copyrights, and any registrations and
applications for any of the foregoing, domain names, licenses, approvals, trade
secrets, know-how, inventions, technology and other similar rights
(collectively, “Intellectual
Property Rights”) reasonably necessary to conduct its business as now
conducted and as proposed to be conducted as set forth in the Offering
Memorandum (the “Business”). The
operation of the Business by the Company, together with the Company’s use of the
Intellectual Property Rights purported to be owned by, or exclusively licensed
to, the Company and used by the Company in the Business (collectively, “Company Intellectual Property
Rights”), does not infringe, misappropriate or otherwise violate the
Intellectual Property Rights of any third party, other than the rights of any
third party under any patent, and to the Company’s knowledge, the operation of
the Business, together with the Company’s use of any Company Intellectual
Property Rights, does not infringe or otherwise violate the rights of any third
party under any patent. Except as disclosed in the Offering
Memorandum, no actions, suits, claims or proceedings have been asserted or, to
the knowledge of the Company, threatened against the Company alleging any of the
forgoing or seeking to challenge, deny or restrict the operation of the Business
by the Company, except for such actions, suits, claims or proceedings as would
not, individually or in the aggregate, result in a Material Adverse
Change. The Company has not received any written notice of a claim of
infringement, misappropriation or conflict with Intellectual Property Rights of
others, except for such claims, individually or in the aggregate, as would not
result in a Material Adverse Change. Except as disclosed in the
Offering Memorandum or except as would not, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Change, no court,
administrative body or arbitral body has issued any order, judgment, decree or
injunction restricting the operation of the Business by the
Company.
Except as
disclosed in the Offering Memorandum or except as would not, individually or in
the aggregate, be reasonably expected to result in a Material Adverse Change,
the Company Intellectual Property Rights owned by the Company and, to the
knowledge of the Company, any Intellectual Property Rights exclusively licensed
to the Company have not been adjudged invalid or unenforceable, in whole or in
part, and, except as aforesaid, there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property
Rights. Except as disclosed in the Offering Memorandum or except as
would not, individually or in the aggregate, be reasonably expected to result in
a Material Adverse Change, there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by others challenging the
Company’s right in or to any Company Intellectual Property
Rights. Except as otherwise disclosed in the Offering Memorandum, the
Company is not a party to or bound by any agreements with respect to the
Intellectual Property Rights of any other person or entity that are required to
be set forth in the Offering Memorandum. None of the technology or
intellectual property included in, or that is the subject matter of, the Company
Intellectual Property Rights has been obtained or is being used by the Company
in violation of any contractual obligation binding on the Company or, to the
Company’s knowledge, any of its officers, directors or employees.
Other
than the patent applications acquired by the Company from a third party (the
“Acquired Patent
Applications”), the Company has duly filed or caused to be filed with the
U.S. Patent and Trademark Office (the “PTO”) or foreign and
international patent authorities all patent applications disclosed in the
Offering Memorandum as owned by the Company (the “Company Patent
Applications”). The Company has complied with the PTO’s duty
of candor and disclosure for the Company Patent Applications and has made no
material misrepresentation during prosecution of the Company Patent Applications
and the Acquired Patent Applications. To the Company’s knowledge, the
Company Patent Applications disclose patentable subject matters and correctly
name the inventors of the claimed subject matter. With respect to the
Company Patent Applications, the Company has not been notified of any
inventorship challenges nor has any interference been declared.
-9-
The
Company has used reasonable security measures, but in no event less than those
efforts that would accord with normal industry practice, to maintain the
confidentiality of the trade secrets and other confidential information included
in the Company Intellectual Property Rights. To the knowledge of the
Company, all material trade secrets included in the Company Intellectual
Property Rights are valid and protectible. Furthermore, to the
knowledge of the Company, (i) there has been no misappropriation of any material
trade secrets included in the Company Intellectual Property Rights by any other
person, (ii) no employee, independent contractor or agent of the Company has
misappropriated any trade secrets of any other person in the course of
performance as an employee, independent contractor or agent of the Company, and
(iii) no employee, independent contractor or agent of the Company is in material
default or breach of any term of any employment agreement, nondisclosure
agreement, assignment of invention agreement or similar agreement or contract
relating in any way to the protection, ownership, development, use or transfer
of Company Intellectual Property Rights owned by the Company.
(r) All Necessary Permits,
etc. The Company and each subsidiary possess such valid and
current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any subsidiary has received,
or has any reason to believe that it will receive, any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, could result in a
Material Adverse Change.
(s) Title to
Properties. Except as otherwise disclosed in the Offering
Memorandum, each of the Company and its subsidiaries has good and marketable
title to all of the real and personal property and other assets reflected as
owned in the financial statements referred to in Section 1(i)(k) above (or
elsewhere in the Offering Memorandum), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, adverse claims and
other defects, except such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company or such subsidiary and except for (A)
the security interests created by the Senior Credit Documents and (B) any other
liens or security interests permitted by the Senior Credit
Documents. The real property, improvements, equipment and personal
property held under lease by the Company or any subsidiary are held under valid
and enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company or such
subsidiary.
-10-
(t) Tax Law
Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them,
except for such failure to file or pay as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company has made
adequate charges, accruals and reserves in the applicable financial statements
referred to in Section 1(i)(k) above in respect of all federal, state and
foreign income and franchise taxes for all periods as to which the tax liability
of the Company or any of its consolidated subsidiaries has not been finally
determined.
(u) Each Issuer Not an “Investment
Company”. Each Issuer has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). Each Issuer is not, and will not be, either after
receipt of payment for the Securities or after the application of the proceeds
therefrom as described under “Use of Proceeds” in the Offering Memorandum, an
“investment company”
within the meaning of the Investment Company Act.
(v) Insurance. The
Company and its subsidiaries are insured by recognized institutions with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed adequate and customary for their businesses including, but
not limited to, policies covering real and personal property owned or leased by
the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes and policies covering the Company and its subsidiaries
for product liability claims and clinical trial liability claims. The
Company has no reason to believe that it or any subsidiary will not be able (i)
to renew its existing insurance coverage as and when such policies expire or
(ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that would
not, individually or in the aggregate, result in a Material Adverse
Change. Neither the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(w) No Price Stabilization or
Manipulation; Compliance with Regulation M. No Issuer has
taken, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the
price of the Securities or any other “reference security” (as defined in Rule
100 of Regulation M under the Exchange Act (“Regulation M”)) whether to
facilitate the sale or resale of the Securities or otherwise, or has taken any
action which would directly or indirectly violate Regulation M.
(x) Related-Party
Transactions. There are no business relationships or
related-party transactions involving the Company or any of its subsidiaries or
any other person required to be described in the Offering Memorandum which have
not been described as required.
(y) Exchange Act
Compliance. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum, 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 Exchange Act, and, when read
together with the other information in the Offering Memorandum, at the Closing
Date 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, in the light of the circumstances under which they were made, not
misleading.
-11-
(z) Statistical and Market-Related
Data. The statistical, demographic and market-related data
included in the Offering Memorandum are based on or derived from sources that
the Company believes to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from such
sources.
(aa) No Unlawful Contributions or Other
Payments. Neither the Company nor any of its subsidiaries nor,
to the Company’s knowledge, any employee or agent of the Company or any
subsidiary, has made any contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in violation of any law or
of the character required to be disclosed in the Offering
Memorandum.
(bb) Disclosure Controls and Procedures;
Deficiencies in or Changes to Internal Control Over Financial
Reporting. The Company has established and maintains
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)), which (i) are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s principal executive officer and its principal financial officer
by others within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being prepared; (ii) have
been evaluated by management of the Company for effectiveness as of a date
within 90 days prior to the earlier of the date that the Company filed its most
recent annual or quarterly report with the Commission and the date of the
Pricing Disclosure Package; and (iii) are effective in all material respects to
perform the functions for which they were established. There has not
been and is no material weakness in the Company’s internal control over
financial reporting since January 1, 2009, and since December 31, 2009, there
has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The Company is
not aware of any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s internal control
over financial reporting. The principal executive officers (or their
equivalents) and principal financial officers (or their equivalents) of the
Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and any related rules and regulations promulgated by the
Commission.
(cc) Compliance with Environmental
Laws. Except as described in the Offering Memorandum and
except as would not, individually or in the aggregate, result in a Material
Adverse Change, (i) 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 (collectively, “Hazardous Materials”) or to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) the
Company and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (iii) 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 (iv) there are no events or circumstances
that might 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 any Environmental
Laws.
-12-
(dd) ERISA
Compliance. The Company and its subsidiaries and any “employee benefit plan” (as
defined under the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder (collectively,
“ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as
defined below) are in compliance in all material respects with
ERISA. “ERISA
Affiliate” means, with respect to the Company or a subsidiary, any member
of any group of organizations described in Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the Company or
such subsidiary is a member. No “reportable event” (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No “employee benefit
plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such “employee benefit plan” were terminated, would have
any “amount of unfunded benefit
liabilities” (as defined under ERISA). Neither the Company,
its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections
412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(ee) Broker. Except as
described in the section entitled “Plan of Distribution” in the Offering
Memorandum, there are no contracts, agreements or understandings between the
Issuer or any Subsidiary and any other person other than the Initial Purchasers
pursuant to this Agreement that would give rise to a valid claim against the
Issuer, any such Subsidiary or any Initial Purchaser for a brokerage commission,
finder’s fee or like payment in connection with the issuance, purchase and sale
of the Original Notes.
(ff) Regulation S
Compliance. None of the Issuers nor, to the Company’s
knowledge, any of their affiliates, or any person acting on behalf of any of the
foregoing persons (other than any Initial Purchaser, as to whom the Issuers make
no representation), is engaged in any directed selling effort with respect to
the Securities, and each of the Issuers and, to the Company’s knowledge, their
affiliates and persons acting on behalf of the foregoing persons, if any, has
complied with the offering restrictions requirement of Regulation S under the
Securities Act. Terms used in this paragraph have the meaning given
to them by Regulation S.
(gg) Affiliates of the
Issuer. None of the Issuers nor, to the Company’s knowledge,
any of their affiliates (as defined in Regulation D under the Securities Act)
has, directly or through any agent (other than the Initial Purchasers or any
affiliate of the Initial Purchasers, as to which no representation is made),
sold, offered for sale, contracted to sell, pledged, solicited offers to buy or
otherwise disposed of or negotiated in respect of, any security (as defined in
the Securities Act) that is currently or will be integrated with the sale of the
Securities in a manner that would require the registration of the Original Notes
under the Securities Act.
-13-
(hh) General
Solicitation. No form of general solicitation or general
advertising (prohibited by the Securities Act in connection with offers or sales
such as the Exempt Resales) was used by the Issuers or, to the Company’s
knowledge, any of their representatives (other than any Initial Purchaser, as to
whom the Issuers make no representation) in connection with the offer and sale
of any of the Original Notes or in connection with Exempt Resales, including,
but not limited to, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or radio or
the Internet, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising within the meaning of Regulation D
under the Securities Act. None of the Issuers nor, to the Company’s
knowledge, any of their affiliates has entered into, and none of the Issuers
nor, to the Company’s knowledge, any of their affiliates will enter into, any
contractual arrangement with respect to the distribution of the Securities
except for this Agreement.
(ii) No Outstanding Loans or Other
Extensions of Credit. Since the adoption of Section 13(k) of
the Exchange Act, neither the Company nor any of its subsidiaries has extended
or maintained credit, arranged for the extension of credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or
executive officer (or equivalent thereof) of the Company and/or such subsidiary
except for such extensions of credit as are expressly permitted by
Section 13(k) of the Exchange Act.
(jj) Compliance with
Laws. The Company and each of its subsidiaries are conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be so
in compliance would not, individually or in the aggregate, result in a Material
Adverse Change. The Company, its subsidiaries and, to the Company’s
knowledge, the Company’s directors and officers are each in compliance in all
material respects with all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act and the rules and regulations of the Commission and the New York Stock
Exchange promulgated thereunder.
(kk) Dividend
Restrictions. Except as otherwise described in the Offering
Memorandum and except as set forth in the Senior Credit Documents, and except
for any prohibitions or restrictions under applicable law, no subsidiary of the
Company is prohibited or restricted, directly or indirectly, from paying
dividends to the Company, or from making any other distribution with respect to
such subsidiary’s equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time become due
under any loans or advances to such subsidiary from the Company or from
transferring any property or assets to the Company or to any other
subsidiary.
(ll) Foreign Corrupt Practices
Act. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that has resulted or
would result in a violation of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as
such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company and its subsidiaries and, to the knowledge of the Company,
the Company’s affiliates have conducted their respective businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably intended to continue to
ensure, continued compliance therewith.
-14-
(mm) Money Laundering
Laws. The operations of the Company and its subsidiaries are,
and have been conducted at all times, in compliance in all material respects
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar applicable rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(nn) OFAC. Neither the
Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and
the Company will not directly or indirectly use the proceeds of this offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(oo) Summaries of Certain Sections.
The statements in the Offering Memorandum under the headings “Material
United States Federal Income Tax Consequences” and “Description of Notes”, under
the subheadings “Risk factors- Risks Related to Our Business— If we are unable
to obtain required clearances or approvals for the commercialization of our
products in the United States, we may not be able to sell future products and
our sales could be adversely affected”; — “We are also subject to applicable
regulatory approval requirements of the foreign countries in which we sell
products, which are costly and may prevent or delay us from marketing our
products in those countries” and —“Failure to comply with on-going regulations
applicable to our businesses may result in significant costs or, in certain
circumstances, the suspension or withdrawal of previously obtained clearances or
approvals”, under the subheading “Business—Government Regulation” and under the
heading “Item 3. Legal Proceedings” in the Company’s 10-K/A for the
fiscal year ended December 31, 2009 and under the heading “Item
1. Legal Proceedings” in the Company’s 10-Q/A for the fiscal quarter
ended June 30, 2010, fairly summarize the matters therein described in all
material respects.
-15-
(pp) Regulation T, U and X.
Neither the issuance, sale and delivery of the Securities nor the application of
the proceeds thereof by the Company as described in the Offering Memorandum will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(qq) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the
Securities Act or Section 21E of the Exchange Act) contained in the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(rr) Pro Forma Financial
Statements. The unaudited pro forma financial statements (including the
notes thereto) incorporated by reference into the Offering Memorandum (A) comply
as to form in all material respects with the applicable requirements of
Regulation S-X, (B) have been prepared in accordance with the Commission’s rules
and regulations with respect to pro forma financial statements and (C) have been
properly computed on the bases described therein. The assumptions
used in the preparation of the pro forma financial statements and the other pro
forma and adjusted financial information included in the Offering Memorandum are
reasonable, and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(ss) Solvency. As of
the date hereof and as of the Closing Date, immediately prior to and immediately
following the consummation of the issuance of the Securities, the Issuers and
their Restricted Subsidiaries (as defined in the Indenture) are and will be
Solvent on a consolidated basis. As used herein, “Solvent” shall mean, for any
person on a particular date, that on such date (A) the fair value of the
property of such person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such person, (B) the
present fair salable value of the assets of such person is not less than the
amount that will be required to pay the probable liability of such person on its
debts as they become absolute and matured, (C) such person does not intend to,
and does not believe that it will, incur debts and liabilities beyond such
person’s ability to pay as such debts and liabilities mature, (D) such person is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such person’s property would constitute an
unreasonably small capital and (E) such person is able to pay its debts as they
become due and payable.
(tt) Incorporated Audits. The Issuers have not received any
communication or correspondence, and have no reason to believe,
that the audits of the historical financial statements of (i) the
Second Territory Business of ACON Laboratories, Inc., AZURE Institute, Inc.,
Oakville Hong Kong Co., Ltd., and ACON Biotech (Hangzhou) Co., Ltd., (ii)
Biosite Incorporated, (iii) Laboratory Specialists of America, Inc. or
(iv) Free & Clear, Inc. incorporated by reference into the
Pricing Disclosure Package and the Final Offering Memorandum
have been withdrawn or qualified in any manner.
The
Issuers understand that the Initial Purchasers and, for purposes of the opinions
to be delivered to the Initial Purchasers pursuant to Section 5 hereof, counsel
to the Issuers and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations, and each Issuer hereby consents to
such reliance.
-16-
Any
certificate signed by any officer of the Company or any of its subsidiaries and
delivered to the Representatives or to counsel for the Initial Purchasers shall
be deemed a representation and warranty by the Company to each Initial Purchaser
as to the matters covered thereby.
(ii) Each
Initial Purchaser represents that it is a QIB and acknowledges that it is
purchasing the Securities pursuant to a private sale exemption from registration
under the Securities Act, and that the 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 pursuant to an
exemption from the registration requirements of the Securities
Act. Each Initial Purchaser, severally and not jointly, represents,
warrants and covenants to the Issuers that:
(a) Neither
it, nor any person acting on its behalf, has solicited or will solicit offers
for, or has offered or sold or will offer or sell, the Securities by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, and it has
solicited and will solicit offers for the Securities only from, and will offer
and sell the Securities only to, (1) persons whom such Initial Purchaser
reasonably believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to such Initial Purchaser that each such
account is a QIB to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in reliance on the
exemption from the registration requirements of the Securities Act pursuant to
Rule 144A, or (2) persons who are not U.S. persons and who are outside the
United States in reliance on, and in compliance with, the exemption from the
registration requirements of the Securities Act provided by Regulation
S.
(b) With
respect to offers and sales outside the United States, such Initial Purchaser
has offered the Securities and will offer and sell the Securities (1) as part of
its distribution at any time and (2) otherwise until 40 days after the later of
the commencement of the offering of the Securities and the Closing Date, only in
accordance with Rule 903 of Regulation S or another exemption from the
registration requirements of the Securities Act. Accordingly, neither
such Initial Purchasers nor any person acting on their behalf has engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such persons have complied and will
comply with the offering restrictions requirements of Regulation
S. Terms used in this Section 1(ii)(b) have the meanings given to
them by Regulation S.
(c) Each
Initial Purchaser severally agrees that, at or prior to confirmation of a sale
of Securities pursuant to Regulation S it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
“The
Securities covered hereby have not been registered under the United States
Securities Act of 1933, as amended (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 and (ii) otherwise
until forty days after the later of the date upon which the offering of the
Securities commenced and the date of closing, except in either case in
accordance with Regulation S or Rule 144A under the Securities
Act. Terms used above have the meanings given to them by Regulation
S.”
-17-
The
Initial Purchasers understand that the Issuers and, for purposes of the opinions
to be delivered to the Initial Purchasers pursuant to Section 5 hereof, counsel
to the Issuers and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations, and each Initial Purchaser hereby
consents to such reliance.
Section
2. Purchase, Sale and Delivery of the
Securities.
(a) Agreements to Sell and Purchase the
Securities. On the basis of the representations, warranties
and covenants contained in this Agreement, the Issuers agree to issue and sell
to the several Initial Purchasers, and on the basis of the representations,
warranties and covenants herein contained, and upon the terms but subject to the
conditions herein set forth, the Initial Purchasers agree, severally and not
jointly, to purchase from the Issuers the respective number of Securities set
forth opposite their names on Schedule
A. The purchase price for the Original Notes shall be 98.250%
of their aggregate principal amount.
(b) Delivery and
Payment. Delivery of the Securities to be purchased by the
Initial Purchasers and payment therefor shall be made at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (or such other place as may be agreed to by
the Company and the Representatives) at 10:00 a.m. New York time, on September
21, 2010, or such other time and date not later than 1:30 p.m. New York time on
October 5, 2010 as the Representatives shall designate by notice to the Company
(the time and date of such closing are called the “Closing Date”).
(c) Payment for the
Securities. Payment for the Securities to be sold by the
Issuers shall be made at the Closing Date by wire transfer of immediately
available funds to the order of the Company.
It is
understood that the Representatives have been authorized, for their own accounts
and the accounts of the several Initial Purchasers, to accept delivery of and
receipt for, and make payment of the purchase price for, the
Securities. ▇▇▇▇▇▇▇▇▇, ▇▇ and Citi individually and not as a
Representative of the Initial Purchasers, may (but shall not be obligated to)
make payment for any Securities to be purchased by any Initial Purchaser whose
funds shall not have been received by the Representatives by the Closing Date
for the account of such Initial Purchaser, but any such payment shall not
relieve such Initial Purchaser from any of its obligations under this
Agreement.
(d) Delivery of the
Securities. The Securities shall be delivered by the Issuers
to the Initial Purchasers (or as the Initial Purchasers direct) through the
facilities of The Depository Trust Company against payment by the Initial
Purchasers of the purchase price therefor. The Securities shall be
evidenced by one or more certificates in global form registered in such names as
the Initial Purchasers may request upon at least one business day’s notice prior
to the Closing Date and having an aggregate principal amount corresponding to
the aggregate principal amount of the Securities.
-18-
Section
3. Additional Covenants of the
Issuers. The Issuers jointly and severally further covenant
and agree with each Initial Purchaser as follows:
(a) Delivery of the Preliminary Offering
Memorandum, Pricing Supplement, any Issuer Written Communication and Final
Offering Memorandum. The Issuers shall furnish the Initial
Purchasers and those persons identified by the Initial Purchasers, without
charge, with as many copies of the Preliminary Offering Memorandum, Pricing
Supplement, any Issuer Written Communication and the Final Offering Memorandum,
and any amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Issuers consent to the use, in accordance
with the provisions of the Securities Act and securities or “blue sky” laws of
the jurisdictions in which the Original Notes are offered, of the Preliminary
Offering Memorandum, Pricing Supplement and the Final Offering Memorandum, and
any amendments and supplements thereto required pursuant to this Agreement, by
the Initial Purchasers in connection with Exempt Resales.
(b) Representatives’ Review of Proposed
Amendments and Supplements. As promptly as practicable
following the execution and delivery of this Agreement and in any event not
later than the second business day following the date hereof, the Issuers shall
prepare and deliver to the Initial Purchasers the Final Offering Memorandum,
which shall consist of the Preliminary Offering Memorandum as modified only to
reflect the information contained in the Pricing Supplement. Prior to
amending or supplementing the Preliminary Offering Memorandum, the Pricing
Supplement or the Final Offering Memorandum (including any amendment or
supplement through incorporation by reference of any report filed under the
Exchange Act), the Issuers shall furnish to the Representatives for review, a
reasonable amount of time prior to the proposed time of use thereof, a copy of
each such proposed amendment or supplement, and the Issuers shall not use any
such proposed amendment or supplement without the Representatives’
consent.
(c) Amendments to the Final Offering
Memorandum. From the date hereof and until the later of the
Closing Date and the date that the Initial Purchasers have completed their
distribution of the Securities (but in no event after the consummation of the
Exchange Offer), if any event shall occur that, in the judgment of the Issuers
or in the judgment of counsel to the Initial Purchasers, makes any statement of
a material fact in the Final Offering Memorandum, as then amended or
supplemented, untrue or that requires the making of any additions to or changes
in the Final Offering Memorandum in order to make the statements in the Final
Offering Memorandum, as then amended or supplemented, in the light of the
circumstances under which they are made, not misleading, or if it is necessary
to amend or supplement the Final Offering Memorandum to comply with all
applicable laws, the Issuer shall promptly notify the Initial Purchasers of such
event and (subject to Section 3(b)) prepare an appropriate amendment or
supplement to the Final Offering Memorandum so that (i) the statements in the
Final Offering Memorandum, as amended or supplemented, will, in the light of the
circumstances at the time that the Final Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Final Offering
Memorandum will comply with all applicable laws.
-19-
(d) Pricing Supplement. The
Issuers will prepare for use by the Initial Purchasers a Pricing Supplement in
the form of Exhibit
B hereto reflecting the final terms of the Securities (and containing
such other information as the Issuers shall deem necessary in order that the
Pricing Disclosure Package shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements in the
Pricing Disclosure Package, in the light of the circumstances under which they
were made, not misleading), in form and substance reasonably satisfactory to the
Representatives. The Pricing Supplement shall constitute an Issuer
Written Communication. The Issuers shall provide the Representatives
with copies of the Pricing Supplement a reasonable amount of time prior to such
proposed use and will not use any Pricing Supplement to which the
Representatives or counsel to the Initial Purchasers shall reasonably
object.
(e) Securities Act
Compliance. After the date of this Agreement, through the time
the Exchange Offer is consummated, the Issuers shall promptly advise the
Representatives in writing of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, with respect to any
registration statement or report filed by such Issuers with the
Commission.
(f) Notification upon
Suspension. The Issuers shall advise the Initial Purchasers
promptly and, if requested by the Initial Purchasers, to confirm such advice in
writing, of the issuance by any securities commission of any stop order
suspending the qualification or exemption from qualification of any of the
Original Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any securities commission or other regulatory
authority. The Issuers shall use their commercially reasonable
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption from qualification of any of the Original Notes under
any securities laws, and if at any time any securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of any of the Original Notes under any securities
laws, the Issuers shall use their commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(g) Use of
Proceeds. The Company shall apply the net proceeds from the
sale of the Original Notes sold by it in the manner described under the caption
“Use of Proceeds” in the Preliminary Offering Memorandum and the Final Offering
Memorandum.
(h) Trustee. The
Issuers shall engage and maintain, at the Company’s expense, a trustee for the
Securities.
(i) Investment
Limitation. The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Securities in such a
manner as would require the Issuers or any of their subsidiaries to register as
an investment company under the Investment Company Act.
-20-
(j) No Stabilization or Manipulation;
Compliance with Regulation M. The Issuers will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the
Securities or any other reference security, whether to facilitate the sale or
resale of the Securities or otherwise, and the Issuers will, and shall cause
each of their affiliates to, comply with all applicable provisions of Regulation
M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with
respect to the Securities or any other reference security pursuant to any
exception set forth in section (d) of Rule 102, then promptly upon notice from
the Representatives (or, if later, at the time stated in the notice), the
Issuers will, and shall cause each of their affiliates to, comply with Rule 102
as though such exception were not available but the other provisions of Rule 102
(as interpreted by the Commission) did apply.
(k) Conditions Precedent. The
Issuers will do and perform all things required to be done and performed under
this Agreement by them prior to the Closing Date in order to satisfy all
conditions precedent on their part to the delivery of the
Securities.
(l) DTC
Book-Entry. The Issuers will comply with their obligations
under the letter of representations to DTC relating to the approval of the
Securities by DTC for “book-entry” transfer and to use their best efforts to
obtain approval of the Securities by DTC for “book-entry” transfer.
(m) Financial Statements. Prior
to the Closing Date, the Company will furnish without charge to the Initial
Purchasers, (i) as soon as they have been prepared by the Company, a copy of any
regularly prepared internal financial statements of the Company and the
Subsidiaries for any period subsequent to the period covered by the financial
statements appearing in the Pricing Disclosure Package and the Final Offering
Memorandum, (ii) all other reports and other communications (financial or
otherwise) that the Company mails or otherwise makes available to its security
holders and (iii) such other information as the Initial Purchasers shall
reasonably request.
(n) No
Integration. The Issuers will not, and will not permit any of
their subsidiaries to, sell, offer for sale or solicit offers to buy any
security (as defined in the Securities Act) that would be integrated with the
sale of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Initial Purchasers or any
Eligible Purchasers.
(o) No Resales. The
Issuers will not, and will not permit any of their subsidiaries to, and will use
their commercially reasonable efforts to cause their other affiliates (as
defined in Rule 144 under the Securities Act) not to, resell any of the
Securities that have been reacquired by any of them.
(p) No General
Solicitation. The Issuers will not engage, and will not allow
any of their subsidiaries to engage, and will use their commercially reasonable
efforts to cause their other affiliates and any person acting on their behalf
(other than, in any case, the Initial Purchasers and any of their affiliates, as
to whom the Issuers make no covenant) not to engage, in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with any offer or sale of the Securities in
the United States prior to the effectiveness of a registration statement with
respect to the Exchange Notes.
-21-
(q) No Directed Selling
Efforts. The Issuers will not engage, and will not allow any
of their subsidiaries to engage, and will use their commercially reasonable
efforts to cause their other affiliates and any person acting on their behalf
(other than, in any case, the Initial Purchasers and any of their affiliates, as
to whom the Issuers make no covenant) not to engage, in any directed selling
effort with respect to the Securities, and to comply with the offering
restrictions requirement of Regulation S under the Securities
Act. Terms used in this paragraph have the meanings given to them by
Regulation S.
(r) Compliance with Regulation
S. The Issuers will not register any transfer of the
Securities not made in accordance with the provisions of Regulation S (unless
otherwise in compliance with the Securities Act) and not, except in accordance
with the provisions of Regulation S, if applicable, issue any such Securities in
the form of definitive securities in connection with the Securities offered and
sold in an offshore transaction (as defined in Regulation S).
(s) Rule 144A
Disclosure. From and after the Closing Date, for so long as
any of the Original Notes remain outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act and during any
period in which the Issuer is not subject to Section 13 or 15(d) of the Exchange
Act, the Issuers will make available upon request the information required by
Rule 144A(d)(4) under the Securities Act to (i) any holder or beneficial owner
of Notes in connection with any sale of such Notes and (ii) any prospective
purchaser of such Notes from any such holder or beneficial owner designated by
the holder or beneficial owner. The Issuers will pay the expenses of
preparing, printing and distributing such documents.
(t) Compliance with Registration Rights
Agreement. The Issuers will comply
with all of their agreements set forth in the Registration Rights
Agreement.
(u) No Distribution of Offering
Materials. The Issuers will not,
and will use their commercially reasonable efforts to cause their affiliates or
anyone acting on their or their affiliates’ behalf (other than the Initial
Purchasers and their affiliates, as to whom the Issuers make no covenant) not
to, distribute prior to the Closing Date any offering material in connection
with the offer and sale of the Securities other than the Preliminary Offering
Memorandum, the Pricing Supplement and the Final Offering
Memorandum. Before communicating any Issuer Written Communication to
any person other than the Initial Purchasers and their counsel, the Company will
furnish to the Representatives and counsel for the Initial Purchasers a copy of
such written communication for review and will not communicate to any such third
party any such written communication to which the Representative reasonably
objects.
(v) No Registration under the Investment
Company Act. During the period of
one year after the Closing Date or, if earlier, until such time as the
Securities are no longer restricted securities (as defined in Rule 144 under the
Securities Act), the Issuers will not be or become a closed-end investment
company required to be registered, but not registered, under the Investment
Company Act of 1940, as amended.
(w) No Manipulation. In connection with the
offering of the Original Notes, until the Representatives shall have notified
the Issuers of the completion of the distribution of the Original Notes, the
Issuers will not, and will use their commercially reasonable efforts to cause
their affiliates (as such term is defined in Rule 501(b) of Regulation D under
the Securities Act) not to, either alone or with one or more other persons, bid
for or purchase for any account in which they or any of their affiliates have a
beneficial interest, and none of the Issuers will, and the Issuers shall use
their commercially reasonable efforts to cause their affiliates not to, make
bids or purchases for the purpose of creating actual or apparent active trading
in, or raising the price of, the Original Notes.
-22-
The
Representatives, on behalf of the Initial Purchasers, may, in their sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their
performance.
Section
4. Payment of
Expenses. The Issuers agree to pay all costs, fees and
expenses incurred in connection with the performance of their obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all fees and
expenses of the Trustee, including fees and expenses of counsel for the Trustee,
(iii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities to the Initial Purchasers, (iv) all fees and
expenses of the Company’s counsel, independent public or certified public
accountants and other advisors, (v) all costs and expenses incurred in
connection with the preparation, printing, shipping and distribution of the
Preliminary Offering Memorandum, the Pricing Supplement, the Final Offering
Memorandum, the Registration Rights Agreement, any Issuer Written Communication
prepared by or on behalf of, used by, or referred to by the Company, and any
amendments and supplements thereto, and this Agreement, (vi) upon receipt of
such evidentiary documentation as the Company shall reasonably request,
reasonable attorneys’ fees and expenses incurred by the Company or the Initial
Purchasers in connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the Securities for
offer and sale under the state securities or blue sky laws or the provincial
securities laws of Canada, and, if requested by the Representatives, preparing
and printing a “Blue Sky Survey” or memorandum and a Canadian wrapper and any
supplements thereto, advising the Initial Purchasers of such qualifications,
registrations and exemptions, which fees and expenses shall not exceed $20,000,
(vii) the filing fees incident to, and the reasonable fees and expenses of
counsel for the Initial Purchasers in connection with, the FINRA’s review, if
any, and approval of the Initial Purchasers’ participation in the offering and
distribution of the Securities, (viii) 50% of the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the preparation or dissemination of
any electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives, employees and officers of the
Company and of the Representatives and any such consultants, and the cost of any
aircraft chartered in connection with the road show, (ix) the inclusion of the
Securities in the book-entry system of The Depository Trust Company, (x) the
rating of the Securities by rating agencies and (xi) the performance by the
Company of its other obligations under the Note Documents. Upon the
consummation of the Transactions contemplated hereby to be consummated on or by
the Closing Date, the Initial Purchasers shall pay to the Company either by wire
transfer of immediately available funds, by direct payment to vendors or by
credit against other monies owed to the Initial Purchasers, such method to be
selected by the Initial Purchasers in their sole discretion, an amount equal to
the expenses described in Section 4(viii). Except as provided in this
Section 4, Section 6, Section 7 and Section 8 hereof, the Initial Purchasers
shall pay their own expenses, including the fees and disbursements of their
counsel.
-23-
Section
5. Conditions of the Obligations of the
Initial Purchasers. The obligations of the several Initial
Purchasers to purchase and pay for the Securities as provided herein on the
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Issuers set forth in Section 1(i) hereof as of the
date hereof and as of the Closing Date as though then made, to the timely
performance by the Issuers of their covenants and other obligations hereunder,
and to each of the following additional conditions:
(a) Accountants’ Comfort
Letter.
(i) Prior
to the Applicable Time, the Representatives shall have received from BDO USA,
LLP, former independent public or certified public accountants for the Company,
a letter dated the date hereof addressed to the Initial Purchasers, in form and
substance satisfactory to the Representatives (i) containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
initial purchasers, delivered according to Statement of Auditing Standards No.
72 (or any successor bulletin), with respect to the audited and unaudited
financial statements of the Company as of dates and for periods ended on or
before March 31, 2010 and certain financial information of the Company contained
in the Pricing Disclosure Package as of such dates and for such periods or as
otherwise agreed (and the Representatives shall have received an additional five
conformed copies of such accountants’ letter for each of the several Initial
Purchasers), and (ii) confirming that they are (A) independent public or
certified public accountants with respect to the Company as required by the
Securities Act and the Exchange Act and (B) in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X.
(ii) Prior
to the Applicable Time, the Representatives shall have received from
PricewaterhouseCoopers LLP, independent public or certified public accountants
for the Company, a letter dated the date hereof addressed to the Initial
Purchasers, in form and substance satisfactory to the Representatives (i)
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to initial purchasers, delivered according to
Statement of Auditing Standards No. 72 (or any successor bulletin), with respect
to the unaudited financial statements of the Company as of dates and for periods
after March 31, 2010 and certain financial information of the Company contained
in the Pricing Disclosure Package as of such dates and for such periods (and the
Representatives shall have received an additional five conformed copies of such
accountants’ letter for each of the several Initial Purchasers), and (ii)
confirming that they are (A) independent public or certified public accountants
with respect to the Company as required by the Securities Act and the Exchange
Act and (B) in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X.
-24-
(iii) Prior
to the Applicable Time, the Representatives shall have received from Samil
PricewaterhouseCoopers, independent public or certified public accountants for
Standard Diagnostics, Inc. (“Standard Diagnostics”), a
letter dated the date hereof addressed to the Initial Purchasers, in form and
substance satisfactory to the Representatives (i) containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
initial purchasers, delivered according to Statement of Auditing Standards No.
72 (or any successor bulletin), with respect to the audited and unaudited pro
forma financial statements of Standard Diagnostics and certain financial
information of Standard Diagnostics contained in the Pricing Disclosure Package
(and the Representatives shall have received an additional five conformed copies
of such accountants’ letter for each of the several Initial Purchasers), and
(ii) confirming that they are (A) independent public or certified public
accountants with respect to Standard Diagnostics as required by the Securities
Act and the Exchange Act and (B) in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X.
(b) No Material Adverse Change or
Ratings Agency Change. For the period from and after the date
of this Agreement through and including the Closing Date:
(i) in
the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(c) Opinion of Counsel for the
Company. On the Closing Date the Representatives shall have
received the opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company, substantially
in the form attached hereto as Exhibit A, dated as
of such Closing Date, in form and substance satisfactory to the Representatives
and counsel to the Initial Purchasers (and the Representatives shall have
received an additional five signed copies of such counsel’s legal opinion for
each of the several Initial Purchasers). On the Closing Date the
Representatives shall have received the opinion of local counsel in the
jurisdiction of organization of each Issuer not organized under the laws of
Massachusetts, Delaware or New York, dated as of such Closing Date, in form and
substance satisfactory to the Representatives and counsel to the Initial
Purchasers (and the Representatives shall have received an additional five
signed copies of each such counsel’s legal opinion for each of the several
Initial Purchasers).
(d) Opinion of Counsel for the Initial
Purchasers. On the Closing Date, the Representatives shall
have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
counsel for the Initial Purchasers, in form and substance satisfactory to the
Initial Purchasers, dated as of such Closing Date.
-25-
(e) Officers’
Certificate. On the Closing Date, the Representatives shall
have received a written certificate executed by the Chief Executive Officer or
President of the Company and the Chief Financial Officer of the Company, dated
as of the Closing Date, to the effect set forth in subsection (b)(ii) of this
Section 5, and further to the effect that:
(i) for
the period from and including the date of this Agreement and through and
including the Closing Date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Issuers set forth in Section
1(i) of this Agreement are true and correct with the same force and effect as
though expressly made on and as of the Closing Date;
(iii) at
August 31, 2010, (i) there was no change in the capital stock, increase in long
term debt, or decrease in consolidated net current assets or stockholders’
equity of the Company and its subsidiaries on a consolidated basis as compared
with amounts shown in the June 30, 2010 unaudited condensed consolidated balance
sheet incorporated by reference in the Pricing Disclosure Package, or (ii) for
the period from July 1, 2010 to August 31, 2010, there were no decreases, as
compared to the corresponding period in the preceding year, in consolidated net
sales and operating income or increases in net loss, except in all instances
under the foregoing clauses (i) and (ii) for changes, increases, or decreases
that the Pricing Disclosure Package disclosed have occurred or may
occur;
(iv) the
Issuers have complied with all the agreements hereunder and satisfied all the
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date;
(v) the Issuers have not received any communication or
correspondence, and have no reason to believe, that the audits of
the historical financial statements of (i) the Second Territory Business of
ACON Laboratories, Inc. AZURE Instititue, Inc.,
Oakville Hong Kong Co., Ltd., and ACON Biotech (Hangzhou) Co., Ltd., (ii)
Biosite Incorporated, (iii) Laboratory Specialists of America,
Inc. or (iv) Free & Clear, Inc. incorporated by reference into the Pricing
Disclosure Package and the Final Offering Memorandum have been withdrawn or
qualified in any manner; and
(vi) the
numerical and percentage differences between 2009 and 2010 periods presented in
the MD&A in the Company’s Form 10-Q/A for the period ended June 30, 2010 are
correct.
(f) Bring-down Comfort
Letters. On the Closing Date, the Representatives shall have
received from each of (i) BDO USA, LLP, former independent public or certified
public accountants for the Company, (ii) PricewaterhouseCoopers LLP, independent
public or certified public accountants for the Company and (iii) Samil
PricewaterhouseCoopers, independent public or certified public accountants for
Standard Diagnostics, a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a) of
this Section 5 but related to the Final Offering Memorandum, except that the
specified date referred to therein for the carrying out of procedures shall be
no more than three business days prior to the Closing Date (and the
Representatives shall have received an additional five conformed copies of such
accountants’ letter for each of the several Initial
Purchasers).
-26-
(g) GE
Consent. General Electric Capital Corporation as
administrative agent under the respective Senior Credit Documents shall have
acknowledged in writing that the Inactive Subsidiaries (as defined in the Senior
Credit Documents) may issue Guarantees and that it has received all notices
required under the Senior Credit Documents. Any waiver of this condition shall
require the written consent of the Company.
(h) Additional
Documents. The Issuers and the Trustee shall have executed and
delivered the Indenture and the Securities and the Initial Purchasers shall have
received copies thereof. The Issuers shall have executed and
delivered the Registration Rights Agreement and the Initial Purchasers shall
have received copies thereof. On or before the Closing Date, the
Representatives and counsel for the Initial Purchasers shall have received such
information, documents and opinions as they may reasonably request for the
purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or the satisfaction of any of the conditions or
agreements herein contained; and all proceedings taken by the Issuers in
connection with the issuance and sale of the Securities as contemplated herein
and in connection with the other transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Initial Purchasers.
If any
condition specified in this Section 5 is not satisfied when and as required to
be satisfied, this Agreement may be terminated by the Representatives by notice
to the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Section 4, Section 6, Section 7 and Section 8 shall at all times be
effective and shall survive such termination.
Section
6. Reimbursement of Initial Purchasers’
Expenses. If this Agreement is terminated by the
Representatives pursuant to Section 5 or Section 10, or if the sale to the
Initial Purchasers of the Securities on the Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Representatives and the other Initial Purchasers (or
such Initial Purchasers as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Representatives and the Initial Purchasers
in connection with the proposed purchase and the offering and sale of the
Securities, including but not limited to fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone
charges.
-27-
Section
7. Indemnification.
(a) Indemnification of the Initial
Purchasers. The Issuers jointly and severally agree to
indemnify and hold harmless each Initial Purchaser, its officers and employees,
and each person, if any, who controls any Initial Purchaser within the meaning
of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which such Initial Purchaser or such
officer, employee or controlling person may become subject, under the Securities
Act, the Exchange Act, other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Pricing Disclosure
Package, any Road Show, any Issuer Written Communication that the Issuers have
used or referred to or the Final Offering Memorandum (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; or (ii) any act or
failure to act or any alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon any matter
covered by clause (i) above, provided that the Issuers shall not be liable under
this clause (ii) to any Initial Purchaser, to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Initial Purchaser
through its bad faith or willful misconduct and to reimburse each Initial
Purchaser and each such officer, employee and controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by the
Representatives) as such expenses are reasonably incurred by such Initial
Purchaser or such officer, employee or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Issuers by the Representatives expressly for use in the Pricing Disclosure
Package, any Issuer Written Communication (including, but not limited to, any
Road Show) or the Final Offering Memorandum (or any amendment or supplement
thereto), it being understood and agreed that the only such information
furnished by the Representatives to the Issuers consists of the information
described in subsection (b) below. The indemnity agreement set forth
in this Section 7(a) shall be in addition to any liabilities that the Issuers
may otherwise have. “Road Show” means each “road show” (as defined in Rule
433 under the Securities Act), if any, related to the offering of the Securities
contemplated hereby that is a “written communication” (as defined in Rule
405 under the Securities Act) as if this offering were a registered
offering.
-28-
(b) Indemnification of the Issuers and
their Directors and Officers. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Issuers, each of
their directors (as defined in Rule 405 under the Securities Act), each of their
officers (as defined in Rule 405 under the Securities Act) and each person, if
any, who controls any Issuer within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which any Issuer, or any such director, officer, manager, member,
partner, other person having similar positions or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue statement or alleged untrue statement of a material
fact contained in the Pricing Disclosure Package, any Issuer Written
Communication (including, but not limited to, any Road Show) that the Issuers
have used or referred to or the Final Offering Memorandum (or any amendment or
supplement thereto), or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Pricing Disclosure
Package, any such Issuer Written Communication, or the Final Offering
Memorandum, 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 the Pricing Disclosure Package, such Issuer Written Communication that the
Issuers have used or referred to, or the Final Offering Memorandum (or such
amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Issuers by the Representatives expressly
for use therein; and to reimburse the Issuers, or any such director, officer,
manager, member, partner, other person having similar positions or controlling
person for any and all expenses (including the fees and disbursements of counsel
chosen by them) as such expenses are reasonably incurred by any Issuer, or any
such director, officer, manager, member, partner, other person having similar
positions or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The Issuers hereby acknowledge that the only
information that the Representatives and the Initial Purchasers have furnished
to the Issuers expressly for use in the Pricing Disclosure Package, any Issuer
Written Communication (including, but not limited to, any Road Show) or the
Final Offering Memorandum (or any amendment or supplement thereto) are the
statements set forth in the second paragraph, the second sentence of the third
paragraph, and the fourth, fifth, tenth, eighteenth, twentieth and twenty-first
paragraphs under the caption “Plan of Distribution” in the Pricing Disclosure
Package and the Final Offering Memorandum. The indemnity agreement
set forth in this Section 7(b) shall be in addition to any liabilities that each
Initial Purchaser may otherwise have.
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(c) Notifications and Other
Indemnification Procedures. Promptly after receipt by an
indemnified party under Section 7(a) or (b) of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under Section 7(a) or (b), notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party for contribution under Section 8
below or otherwise under the indemnity agreement contained in Section 7(a) or
(b), except to the extent such indemnifying party is materially prejudiced as a
proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s
election so to assume the defense of such action and approval by the indemnified
party of counsel (which shall not be unreasonably withheld, delayed or
conditioned), the indemnifying party or parties will not be liable to such
indemnified party under Section 7(a) or (b) for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and
expenses of more than one separate firm of attorneys (together with local
counsel), representing the indemnified parties who are parties to such action),
which counsel (together with any local counsel) for the indemnified parties
shall be selected by the Representatives (in the case of counsel for the
indemnified parties referred to in Section 7(a) above) or by the Company (in the
case of counsel for the indemnified parties referred to in Section 7(b) above)),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party authorizes the indemnified party to employ separate counsel
at the indemnifying party’s expense, in each of which cases the reasonable fees
and expenses of counsel shall be at the expense of the indemnifying party and
shall be paid as they are incurred.
(d) Settlements. The
indemnifying party under this Section 7 shall not be liable for any settlement
of any proceeding effected without its written consent (such consent not to be
unreasonably withheld, delayed or conditioned), but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability or
expense (to the extent provided in this Section 7) by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
7(c) hereof, the indemnifying party agrees that it shall be liable (to the
extent provided in this Section 7) for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
(including documentation of such fees and expenses reasonably satisfactory to
the indemnifying party) and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request (to the extent
required by this Section 7) prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding and 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.
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Section
8. Contribution. If
the indemnification provided for in Section 7 is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities pursuant to this Agreement 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 Issuers, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers, on the
one hand, and the Initial Purchasers, 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 Issuers, and the total initial purchasers’ discounts and commissions
received by the Initial Purchasers hereunder. The relative fault of
the Issuers, on the one hand, and the Initial Purchasers, 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 Issuers, on the
one hand, or the Initial Purchasers, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section
7(c) with respect to notice of commencement of any action shall apply if a claim
for contribution is to be made under this Section 8; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 7(c) for purposes of indemnification.
The
Issuers and the Initial Purchasers agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Initial Purchasers 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 in this Section 8.
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Notwithstanding
the provisions of this Section 8, no Initial Purchaser shall be required to
contribute any amount in excess of the initial purchasers’ discounts and
commissions received by such Initial Purchaser in connection with the Securities
purchased by it. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to
this Section 8 are several, and not joint, in proportion to their respective
purchase commitments as set forth opposite their respective names on Schedule A. For
purposes of this Section 8, each officer and employee of an Initial Purchaser
and each person, if any, who controls an Initial Purchaser within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such Initial Purchaser, and each director of the Issuers, each
officer of the Issuers, and each person, if any, who controls the Issuers with
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Issuers.
Section
9. Default of One or
More of the Several Initial Purchasers. If, on the Closing Date, any one
or more of the several Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, the Representatives may make arrangements satisfactory
to the Issuers for the purchase of such Securities by other persons, including
any of the Initial Purchasers, but if no such arrangements are made by the
Closing Date, the other Initial Purchasers shall be obligated, severally and not
jointly, in the proportions that the principal amount of Securities set forth
opposite their respective names on Schedule A bears to
the aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting Initial
Purchasers, to purchase the Securities which such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase on such date. If,
on the Closing Date, any one or more of the Initial Purchasers shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities
with respect to which such default occurs exceeds 10% of the aggregate principal
amount of Securities to be purchased on such date, and arrangements satisfactory
to the Representatives and the Issuers for the purchase of such Securities are
not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of
Section 4, Section 7 and Section 8 shall at all times be effective and shall
survive such termination. In any such case either the Representatives or the
Issuers shall have the right to postpone the Closing Date, but in no event for
longer than seven days in order that the required changes, if any, to the Final
Offering Memorandum or any other documents or arrangements may be
effected.
As used
in this Agreement, the term “Initial Purchaser” shall be deemed to include any
person substituted for a defaulting Initial Purchaser under this Section
9. Any action taken under this Section 9 shall not relieve any
defaulting Initial Purchaser from liability in respect of any default of such
Initial Purchaser under this Agreement.
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Section
10. Termination of this
Agreement. Prior to the purchase of the Securities by the
Initial Purchasers on the Closing Date this Agreement may be terminated by the
Representatives by notice given to the Company if at any time (i) trading or
quotation in any of the Company’s securities shall have been suspended or
limited by the Commission or by any exchange, or trading in securities generally
on any exchange shall have been suspended or limited, the settlement of such
trading shall have been materially disrupted or minimum or maximum prices shall
have been generally established on any of such stock exchanges by such exchange,
the Commission or the FINRA; (ii) a general banking moratorium shall have been
declared by any of federal, New York, or Delaware authorities; (iii) there shall
have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development
involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the
Representatives is material and adverse and makes it impracticable to market the
Securities in the manner and on the terms described in the Pricing Disclosure
Package and the Final Offering Memorandum or to enforce contracts for the sale
of securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Representatives may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination
pursuant to this Section 10 shall be without liability on the part of (a) the
Issuers to any Initial Purchaser, except that the Issuers shall be obligated to
reimburse the expenses of the Representatives and the Initial Purchasers
pursuant to Sections 4 and 6 hereof, (b) any Initial Purchaser to the Issuers,
or (c) of any party hereto to any other party except as aforesaid and except
that the provisions of Section 7 and Section 8 shall at all times be effective
and shall survive such termination.
Section
11. No Advisory or Fiduciary
Relationship. Each of the Issuers acknowledges and agrees that (a) the
purchase and sale of the Securities sold by such party pursuant to this
Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, are an arm’s-length
commercial transaction between such party, on the one hand, and the several
Initial Purchasers, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Initial
Purchaser is and has been acting solely as a principal and is not the agent or
fiduciary of such party, or its stockholders, creditors or employees, as
applicable, or any other party, (c) no Initial Purchaser has assumed or will
assume an advisory or fiduciary responsibility in favor of such party with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Initial Purchaser has advised or is currently
advising any Issuer on other matters) and no Initial Purchaser has any
obligation to such party with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the Initial
Purchasers and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Issuers, and
(e) the Initial Purchasers have not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and such party
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
Section
12. Certain
Acknowledgments. The Issuers understand that each of the
Initial Purchasers is a full service securities firm and as such from time to
time, subject to applicable securities laws, may effect transactions for its own
account or the account of its customers and hold long or short positions in debt
or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
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Each
Initial Purchaser, severally and not jointly, represents and warrants to and
agrees with the Issuers that:
(a) in
relation to each Member State of the European Economic Area (namely, the
European Union, Iceland, Norway and Liechtenstein) which has implemented the
Prospectus Directive (each, a Relevant Member State), with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the Relevant Implementation Date), it has not made and
will not make an offer of notes to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the notes which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of notes to the public in that
Relevant Member State at any time:
(i) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
(ii) to
any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts;
(iii) to
fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive); or
(iv) in
any other circumstances which do not require the publication by the issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the
purposes of this provision, the expression an “offer of notes to the public” in
relation to any notes in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms of the offer
and the notes to be offered so as to enable an investor to decide to purchase or
subscribe for the notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(b) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
▇▇▇ ▇▇▇▇, or FSMA) received by it in connection with the issue or sale of the
notes in circumstances in which Section 21(1) of the FSMA does not apply to the
issuer;
(c) it
has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the notes in, from or otherwise
involving the United Kingdom;
-34-
(d) the
notes have not been and will not be registered under the Financial Instruments
and Exchange Law of Japan (the Financial Instruments and Exchange Law) and it
will not offer or sell any notes, directly or indirectly, in Japan or to, or for
the benefit of, any resident of Japan (which term as used herein means any
person resident in Japan, including any corporation or other entity organized
under the laws of Japan), or to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except pursuant to an exemption
from the registration requirements of, and otherwise in compliance with, the
Financial Instruments and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan;
(e) the
Notes may not be offered or sold by means of any document other than (i) in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional
investors” within the meaning of the Securities and Futures Ordinance (Cap.571,
Laws of Hong Kong) and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a “prospectus” within
the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no
advertisement, invitation or document relating to the Notes may be issued or may
be in the possession of any person for the purpose of issue (in each case
whether in Hong Kong or elsewhere), which is directed at, or the contents of
which are likely to be accessed or read by, the public in Hong Kong (except if
permitted to do so under the laws of Hong Kong) other than with respect to Notes
which are or are intended to be disposed of only to persons outside Hong Kong or
only to “professional investors” within the meaning of the Securities and
Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder;
(f) the
offering memorandum has not been registered as a prospectus with the Monetary
Authority of Singapore; accordingly, the offering memorandum and any other
document or material in connection with the offer or sale, or invitation for
subscription or purchase, of the Notes may not be circulated or distributed, nor
may the Notes be offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to persons in
Singapore other than (i) to an institutional investor under Section 274 of the
Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a
relevant person, or any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other applicable
provision of the SFA; Where the Notes are subscribed or purchased under Section
275 by a relevant person which is: (a) a corporation (which is not an accredited
investor) the sole business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of whom is an
accredited investor; or (b) a trust (where the trustee is not an accredited
investor) whose sole purpose is to hold investments and each beneficiary is an
accredited investor, shares, debentures and units of shares and debentures of
that corporation or the beneficiaries’ rights and interest in that trust shall
not be transferable for 6 months after that corporation or that trust has
acquired the notes under Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions, specified in Section 275
of the SFA; (2) where no consideration is given for the transfer; or (3) by
operation of law; and
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(g) it
intends to comply with all applicable laws and regulations in each jurisdiction
in which it acquires, offers, sells or delivers the Notes or has in its
possession or distributes the Pricing Disclosure Package and the Final Offering
Memorandum.
Section
13. Representations and Indemnities to
Survive Delivery. The respective indemnities, contribution
obligations, agreements, representations, warranties and other statements of the
Issuers, of their officers and of the several Initial Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or the
Issuers or any of their partners, officers or directors or any controlling
person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Securities sold
hereunder and any termination of this Agreement.
Section
14. Notices. All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
If to the
Representatives:
▇▇▇▇▇▇▇▇▇
& Company, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
General Counsel
with a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to the
Company:
▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention:
Chief Executive Officer
with a
copy to:
▇▇▇▇▇
▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
15. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Initial Purchasers pursuant to Section 9 hereof, and to
the benefit of the employees, officers, directors and controlling persons
referred to in Section 7 and Section 8, and in each case their respective
successors, and no other person will have any right or obligation
hereunder. The term “successors” shall not include
any purchaser of the Securities as such from any of the Initial Purchasers
merely by reason of such purchase.
Section
16. Partial
Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section
17. Governing Law
Provisions. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in such state. Any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”) may be
instituted in the federal courts of the United States of America located in the
Borough of Manhattan in the City of New York or the courts of the State of New
York in each case located in the Borough of Manhattan in the City of New York
and the appellate courts thereof (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
“Related Judgment”), as
to which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient
forum.
With
respect to any Related Proceeding, each party irrevocably waives, to the fullest
extent permitted by applicable law, all immunity (whether on the basis of
sovereignty or otherwise) from jurisdiction, service of process, attachment
(both before and after judgment) and execution to which it might otherwise be
entitled in the Specified Courts, and with respect to any Related Judgment, each
party waives any such immunity in the Specified Courts or any other court of
competent jurisdiction, and will not raise or claim or cause to be pleaded any
such immunity at or in respect of any such Related Proceeding or Related
Judgment, including, without limitation, any immunity pursuant to the United
States Foreign Sovereign Immunities Act of 1976, as amended.
Section
18. USA Patriot Act. In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Initial Purchasers are required
to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and
address of their respective clients, as well as other information that will
allow the Initial Purchasers to properly identify their respective
clients.
-37-
Section
19. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The Section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
Each of
the parties hereto acknowledges that it is a sophisticated business person who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 7 and the contribution provisions of Section 8, and is fully informed
regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 7 and 8 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Issuers, their
affairs and their business in order to assure that adequate disclosure has been
made in the Pricing Disclosure Package, any Issuer Written Communication
(including, but not limited to, any Road Show) and the Final Offering Memorandum
(and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
-38-
If the
foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
|
Very
truly yours,
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
Chief Financial Officer
|
|
|
As
Guarantors:
|
|
|
ALERE
HEALTH, LLC
|
|
|
ALERE
HEALTHCARE OF ILLINOIS, INC.
|
|
|
ALERE
HEALTH IMPROVEMENT COMPANY
|
|
|
ALERE
HEALTH SYSTEMS, INC.
|
|
|
ALERE
HOME MONITORING, INC.
|
|
|
ALERE
INTERNATIONAL HOLDING CORP.
|
|
|
ALERE
MEDICAL, INC.
|
|
|
ALERE
NEWCO, INC.
|
|
|
ALERE
NEWCO II, INC.
|
|
|
ALERE
NORTH AMERICA, INC.
|
|
|
ALERE
SAN DIEGO, INC.
|
|
|
ALERE
SCARBOROUGH, INC.
|
|
|
ALERE
US HOLDINGS, LLC
|
|
|
ALERE
WELLOLOGY, INC.
|
|
|
ALERE
WOMEN’S AND CHILDREN’S HEALTH, LLC
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title
(respectively): Vice President and
Treasurer;
|
|
|
Vice President, Finance; Vice President,
|
|
|
Finance; Vice President and Treasurer; Vice
|
|
|
President, Finance; President; Vice
|
|
|
President and Treasurer; President;
|
|
|
President; Vice President, Finance; Vice
|
|
|
President, Finance; Vice President, Finance;
|
|
|
President; Vice President, Finance; Vice
|
|
|
President, Finance
|
|
|
AMEDITECH
INC.
|
|
|
APPLIED
BIOTECH, INC.
|
|
|
BINAX,
INC.
|
|
|
BIOSITE
INCORPORATED
|
|
|
CHOLESTECH
CORPORATION
|
|
|
FIRST
CHECK DIAGNOSTICS CORP.
|
|
|
FIRST
CHECK ECOM, INC.
|
|
|
FREE
& CLEAR, INC.
|
|
|
GENECARE
MEDICAL GENETICS CENTER,
|
|
|
INC.
|
|
|
HEMOSENSE,
INC.
|
|
|
INNOVACON,
INC.
|
|
|
INSTANT
TECHNOLOGIES, INC.
|
|
|
INVERNESS
MEDICAL, LLC
|
|
|
INVERNESS
MEDICAL - BIOSTAR INC.
|
|
|
IVC
INDUSTRIES, INC.
|
|
|
MATRITECH,
INC.
|
|
|
OSTEX
INTERNATIONAL, INC.
|
|
|
QUALITY
ASSURED SERVICES, INC.
|
|
|
REDWOOD
TOXICOLOGY LABORATORY,
|
|
|
INC.
|
|
|
RMD
NETWORKS, INC.
|
|
|
RTL
HOLDINGS, INC.
|
|
|
SELFCARE
TECHNOLOGY, INC.
|
|
|
▇▇▇▇▇▇▇
LABORATORIES, LLC
|
|
|
ZYCARE,
INC.
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title
(respectively): General Manager; Vice
|
|
|
President;
Vice President, Finance; Vice
|
|
|
President,
Finance; Vice President,
|
|
|
Finance;
Vice President, Finance; Vice
|
|
|
President;
Vice President, Finance; Vice
|
|
|
President
and Treasurer; Treasurer; Vice
|
|
|
President,
Finance; Vice President,
|
|
|
Finance;
Vice President, Finance; Vice
|
|
|
President,
Finance; Vice President; Vice
|
|
|
President,
Finance; Vice President,
|
|
|
Finance;
Vice President, Finance; Vice
|
|
|
President,
Finance; Vice President,
|
|
|
Finance
and Treasurer; Vice President,
|
|
|
Finance;
Vice President, Finance; Vice
|
|
|
President;
Chief Financial Officer and
|
|
|
Treasurer
|
|
-2-
|
ALERE
TOXICOLOGY SERVICES, INC.
|
|
|
LABORATORY
SPECIALISTS OF AMERICA,
|
|
|
INC.
|
|
|
SCIENTIFIC
TESTING LABORATORIES,
|
|
|
INC.
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title
(respectively): Secretary;
|
|
|
Secretary;
Secretary
|
|
-▇-
|
▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, INC.
|
|
|
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Title: President
|
|
The
foregoing Purchase Agreement is hereby confirmed and accepted by the
Representatives in New York, New York as of the date first above
written.
▇▇▇▇▇▇▇▇▇
& COMPANY, INC.
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
CITIGROUP
GLOBAL MARKETS INC.
Acting as
Representatives of the
several
Initial Purchasers named in
the
attached Schedule
▇.
|
▇▇▇▇▇▇▇▇▇
& COMPANY, INC.
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title:
Managing Director
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇, Sachs &
Co.
|
|
(▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.)
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
VP
|
|
-4-
SCHEDULE
A
|
Initial Purchasers
|
Principal
Amount of
Notes
to be Sold
|
|||
|
▇▇▇▇▇▇▇▇▇
& Company, Inc.
|
$ | 200,000,000 | ||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
|
$ | 100,000,000 | ||
|
Citigroup
Global Markets Inc.
|
$ | 60,000,000 | ||
|
Leerink
▇▇▇▇▇ LLC
|
$ | 20,000,000 | ||
|
BMO
Capital Markets Corp.
|
$ | 20,000,000 | ||
|
Total
|
$ | 400,000,000 | ||
SCHEDULE
B
Guarantors
1.
Alere Health Improvement
Company
2.
Alere Health Systems,
Inc.
3.
Alere Healthcare of Illinois,
Inc.
4.
Alere Health, LLC
5.
Alere Home Monitoring, Inc.
6.
Alere International Holding
Corp.
7. Alere
Medical, Inc.
8.
Alere Wellology, Inc.
9.
Alere Toxicology Services, Inc.
10. Alere
NewCo, Inc.
11. Alere
NewCo II, Inc.
12. Alere
North America, Inc.
13. Alere
San Diego, Inc.
14. Alere
Scarborough, Inc.
15. Alere
US Holdings, LLC
16. Alere
Women’s and Children’s Health, LLC
17. Ameditech
Inc.
18. Applied
Biotech, Inc.
19. Binax,
Inc.
20. Biosite
Incorporated
21. Cholestech
Corporation
22. First
Check Diagnostics Corp.
23. First
Check Ecom, Inc.
24. Free
& Clear, Inc.
25. Genecare Medical Genetics Center,
Inc.
26. Hemosense,
Inc.
27. Innovacon,
Inc.
28. Instant
Technologies, Inc.
29. Inverness
Medical - Biostar Inc.
30. Inverness
Medical, LLC
31. IVC
Industries, Inc.
32. Laboratory
Specialists of America, Inc.
33. Matria
of New York, Inc.
34. Matritech,
Inc.
35. Ostex
International, Inc.
36. Quality
Assured Services, Inc.
37. Redwood
Toxicology Laboratory, Inc.
38
RMD Networks, Inc.
39. RTL
Holdings, Inc.
40. Scientific
Testing Laboratories, Inc.
41. Selfcare
Technology, Inc.
42. ▇▇▇▇▇▇▇
Laboratories, LLC
43. ZyCare,
Inc.
-2-
Non-Guarantor
Subsidiaries
|
|
1.
|
Inverness
Medical Switzerland GmbH
|
|
|
2.
|
IMG
Holding GmbH
|
|
|
3.
|
CLONDIAG
GmbH
|
|
|
4.
|
Inverness
Medical (UK) Holdings Limited
|
|
|
5.
|
Unipath
Limited
|
|
|
6.
|
Inverness
Medical Japan Co., Ltd.
|
|
|
7.
|
ABON
Biopharm (Hangzhou) Co., Ltd.
|
|
|
8.
|
Inverness
Medical Spain, S.L.
|
|
9.
|
BBI
Holdings PLC
|
|
|
10.
|
Concateno
PLC
|
|
|
11.
|
Standard
Diagnostics, Inc.
|
Subsidiaries Disposed
Of
1.
Diamics, Inc.
Subsidiaries Merged into
Other Subsidiaries
|
|
1.
|
Advantage
Diagnostics Corporation (merged into Matritech,
Inc.)
|
|
|
2.
|
Alere
CDM LLC (merged into Alere Health Improvement
Company)
|
|
3.
|
Innovations
Research, LLC (merged into Matritech,
Inc.)
|
|
|
4.
|
Inverness
Medical International Holding Corp. (merged into Inverness Medical
International Holding Corp. II, n/k/a Alere International Holding
Corp.)
|
|
|
5.
|
Innovative
Mobility, LLC (merged into Quality Assured Services,
Inc.)
|
|
|
6.
|
Ischemia
Technologies, Inc. (merged into Alere San
Diego)
|
-3-
EXHIBIT
A
FORM OF NEGATIVE ASSURANCE
LETTER OF ▇▇▇▇▇ ▇▇▇▇ LLP
As
counsel to the Company, we reviewed the Pricing Disclosure Package and the Final
Offering Memorandum, and participated in discussions with your representatives,
those of counsel for the several Initial Purchasers (the “Initial Purchasers”), and
those of the Company and its independent public accountants, at which the
contents of the Pricing Disclosure Package and the Final Offering Memorandum
were discussed. Between the Applicable Time and the time of the
delivery of this letter, we participated in further discussions with your
representatives, those of counsel for the Initial Purchasers, and those of the
Company and its accountants, and we reviewed certain certificates of officers of
the Company and public officials and letters from the Company’s independent
public accountants delivered to you today.
The
purpose of our engagement was not to establish or to confirm factual matters set
forth in the Pricing Disclosure Package or the Final Offering Memorandum, and we
have not undertaken any obligation to verify independently any of the factual
matters set forth in the Pricing Disclosure Package or the Final Offering
Memorandum (except as set forth below). Moreover, many of the
determinations required to be made in the preparation of the Pricing Disclosure
Package and the Final Offering Memorandum involve matters of a non-legal
nature.
Subject
to the foregoing, and although we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Pricing Disclosure Package or the Final Offering Memorandum,
except to the extent expressly set forth in numbered paragraph 21 of our opinion
letter to you of even date herewith, we confirm to you that: (i) on the basis of
the information that we gained in the course of performing the services referred
to above, nothing came to our attention that caused us to believe that (a) the
Pricing Disclosure Package, at the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (b) the Final Offering Memorandum, as of its date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii) nothing came
to our attention in the course of the procedures described in the second
sentence of the first paragraph of this letter that caused us to believe that
the Final Offering Memorandum, as of the date and time of delivery of this
letter, contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that we do
not express any belief as to the financial statements and related notes,
financial statement schedules or financial or accounting data and information,
contained in or omitted from the Pricing Disclosure Package or the Final
Offering Memorandum. In the first sentence of this paragraph, “attention” refers to the
conscious awareness of each of the lawyers of our firm who actively participated
in the preparation of the Pricing Disclosure Package and the Final Offering
Memorandum. In addition, we express no opinion or belief as to the
conveyance of the Pricing Disclosure Package or the information contained
therein to investors.
Further,
we confirm to you that each Incorporated Document (in each case as the same may
have been amended prior to the Applicable Time), at the time such document was
filed with the Commission or at the time such document became effective, as
applicable, appears to us on its face to respond in all material respects to the
requirements of the form on which the Incorporated Document was filed, except
that the foregoing statement does not address any requirement relating to
financial statements and related notes, financial statement schedules or
financial or accounting data and information contained in or omitted from any
Incorporated Document.
FORM OF LEGAL OPINION OF
▇▇▇▇▇ ▇▇▇▇ LLP
[For
purposes of this opinion, the term “Covered Guarantor” shall mean each Guarantor
organized under the laws of Delaware, New York or Massachusetts, and “Identified
Contracts” shall mean contracts included or incorporated by reference in the
Pricing Disclosure Package and the Final Offering Memorandum. Local
counsel will give opinions 2, 4, 5, 7 and 17 (only as to local law and charter
documents) as to other Guarantors.]
1. The
Company is validly existing as a corporation in good standing under Delaware
law. The Company has the corporate power to own its properties and
conduct its business as described in the Pricing Disclosure Package and the
Final Offering Memorandum. The Company is duly qualified to do
business and in good standing as a foreign corporation in The Commonwealth of
Massachusetts.
2. Each
Covered Guarantor is validly existing as a corporation or limited liability
company (as applicable) in good standing under the laws of the state of its
incorporation or formation. Each Covered Guarantor has the corporate
or limited liability company (as applicable) power to own its properties and
conduct its business as described in the Pricing Disclosure Package and the
Final Offering Memorandum.
3. The
Company has the corporate power to execute and deliver the Purchase Agreement,
the Base Indenture, the Supplemental Indenture, the Registration Rights
Agreement and the Original Notes and to perform its obligations
thereunder.
4. Each
Covered Guarantor has the corporate or limited liability company (as applicable)
power to execute and deliver the Purchase Agreement, the Supplemental Indenture,
the Registration Rights Agreement and to perform its obligations thereunder,
including its Guarantee.
5. The
Purchase Agreement has been duly authorized, executed and delivered by the
Company and each Covered Guarantor.
6. Each
of the Base Indenture and the Supplemental Indenture has been duly authorized,
executed and delivered by the Company.
7. The
Supplemental Indenture and each Guarantee of a Covered Guarantor have been duly
authorized by the applicable Covered Guarantor, and the Supplemental Indenture
has been duly executed and delivered by each Covered Guarantor.
-2-
8. The
Base Indenture is a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the
Enforceability Exceptions.
9. The
Supplemental Indenture is a valid and legally binding obligation of each Issuer,
enforceable against such Issuer in accordance with its terms, subject to the
Enforceability Exceptions.
10. The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and each Covered Guarantor and the Registration Rights Agreement
constitutes a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the Enforceability
Exceptions.
11. The
Original Notes have been duly authorized and executed by the
Company.
12. When
the Original Notes are duly authenticated by the Trustee and delivered by or on
behalf of the Company against payment therefor by the Initial Purchasers in
accordance with the terms of the Purchase Agreement and the Indenture, the
Original Notes will be valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the Enforceability
Exceptions.
13. When
the Original Notes are duly authenticated by the Trustee and delivered by or on
behalf of the Company against payment therefor by the Initial Purchasers in
accordance with the terms of the Purchase Agreement and the Indenture, each
Guarantee will be a valid and legally binding obligation of the applicable
Guarantor, enforceable against such Guarantor in accordance with its terms,
subject to the Enforceability Exceptions.
14. The
execution and delivery by the Company of the Purchase Agreement, the Indenture,
the Registration Rights Agreement and the Original Notes, and the performance by
the Company of its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement and the Original Notes, including the issuance and
sale by the Company of the Original Notes, will not result in a breach of, or
constitute a default (or an event that with notice or the lapse of time, or
both, would constitute a default) under, any Identified Contract.
15. The
execution and delivery by the Company of the Purchase Agreement, the Indenture,
the Registration Rights Agreement and the Original Notes, and the performance by
the Company of its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement and the Original Notes, including the issuance and
sale by the Company of the Original Notes, will not (a) except as contemplated
by the Registration Rights Agreement, require any consent, approval, license, or
exemption by, or order or authorization of, or filing, recording or registration
by the Company with, any Massachusetts or federal governmental authority or
pursuant to the Delaware General Corporation Law, except for filings pursuant to
the Securities Act, the Exchange Act and the Trust Indenture Act that have been
made and are available on ▇▇▇▇▇ and except for filings that may be required
under Section 13(a) or 15 of the Exchange Act regarding disclosure of the terms
of the Purchase Agreement, the Indenture, the Registration Rights Agreement, the
Original Notes, the Guarantees and the transactions contemplated thereby, (b)
violate the Certificate of Incorporation or By-laws of the Company, or (c)
violate the Delaware General Corporation Law or any Massachusetts or federal
statute, rule or regulation, except that we express no opinion with respect to
the anti-fraud provisions of federal securities laws or with respect to state
securities or Blue Sky laws.
-3-
16. The
execution and delivery by each Guarantor of the Purchase Agreement, the
Supplemental Indenture and the Registration Rights Agreement, and the
performance by each Guarantor of its obligations under the Purchase Agreement,
the Supplemental Indenture, the Registration Rights Agreement and its Guarantee,
including the issuance by each Guarantor of its Guarantee, will not result in a
breach of, or constitute a default (or an event that with notice or the lapse of
time, or both, would constitute a default) under, any Identified
Contract.
17. The
execution and delivery by each Guarantor of the Purchase Agreement, the
Supplemental Indenture and the Registration Rights Agreement, and the
performance by each Guarantor of its obligations under the Purchase Agreement,
the Supplemental Indenture, the Registration Rights Agreement and its Guarantee,
including the issuance by each Guarantor of its Guarantee, will not (a) except
as contemplated by the Registration Rights Agreement with respect to the
Exchange Offer, require any consent, approval, license, or exemption by, or
order or authorization of, or filing, recording or registration by such
Guarantor with, any Massachusetts or federal governmental authority or (in the
case of Covered Guarantors organized under the Delaware General Corporation Law)
pursuant to the Delaware General Corporation Law, except for filings pursuant to
the Securities Act, the Exchange Act and the Trust Indenture Act that have been
made and are available on ▇▇▇▇▇ and except for filings that may be required
under Section 13(a) or 15 of the Exchange Act regarding disclosure of the terms
of the Purchase Agreement, the Indenture, the Registration Rights Agreement, the
Original Notes, the Guarantees and the transactions contemplated thereby, (b)
violate the certificate of incorporation or by-laws of any Covered Guarantor
that is a corporation organized under the laws of the State of Delaware, the
articles of organization or by-laws of any Covered Guarantor that is a
corporation organized under the laws of the Commonwealth of Massachusetts, or
the certificate of formation or operating agreement of any Covered Guarantor
that is a limited liability company organized under the laws of the State of
Delaware, or (c) violate any Massachusetts or federal statute, rule or
regulation or (in the case of Covered Guarantors organized under the Delaware
General Corporation Law) the Delaware General Corporation Law, except that we
express no opinion with respect to the anti-fraud provisions of federal
securities laws or with respect to state securities or Blue Sky
laws.
18. Neither
the issuance, sale and delivery of the Original Notes and the Guarantees nor the
application of the proceeds thereof by the Company as described in the Final
Offering Memorandum will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
19. The
Purchase Agreement, the Indenture, the Registration Rights Agreement, the
Original Notes and the Guarantees conform in all material respects to the
descriptions thereof in the Pricing Disclosure Package and the Final Offering
Memorandum.
-4-
20. The
statements in the Preliminary Offering Memorandum and the Final Offering
Memorandum under the headings “Material United States Federal Income Tax
Consequences” and “Description of Notes,” and in the third sentence of the
second paragraph under the subheading “Claims in the Ordinary Course and Other
Matters” under the heading “Item 3. Legal Proceedings” in Part I of the
Company’s 10-K/A for the fiscal year ended December 31, 2009, insofar as such
statements contain descriptions of Massachusetts or federal laws, rules or
regulations or of legal proceedings, and insofar as they describe the terms of
agreements, are correct in all material respects.
21. Neither
the Company nor any Guarantor is or, after giving effect to the issuance of the
Original Notes and the Guarantees and the application of the proceeds thereof by
the Company as described in the Final Offering Memorandum, will be, an
“investment company,” as that term is defined in the Investment Company Act of
1940, as amended.
22. No
registration under the Securities Act of the Securities or qualification of the
Indenture under the Trust Indenture Act is required for the sale of the
Securities to the Initial Purchasers as contemplated by the Purchase Agreement
or for the Exempt Resales, assuming in each case that (a) the purchasers who buy
the Securities in the Exempt Resales are Eligible Purchasers and (b) the
accuracy of and compliance with the Initial Purchasers’ representations,
warranties and covenants contained in the Purchase Agreement.
23. We
are not representing the Company or any Guarantor in any pending litigation in
which the Company or any Guarantor is a named defendant that challenges the
validity or enforceability of, or seeks to enjoin the performance of, the
Purchase Agreement, the Indenture, the Registration Rights Agreement, the
Original Notes or any Guarantee.
-5-
EXHIBIT
B
FORM
OF PRICING SUPPLEMENT
This
summary pricing sheet relates only to the securities described below and should
only be read together with the Preliminary Offering Memorandum, subject to
completion, dated September 13, 2010, relating to these securities and
supersedes the information in the Preliminary Offering Memorandum to the extent
inconsistent with the information in the Preliminary Offering
Memorandum. This pricing term sheet is qualified in its entirety by
reference to the Preliminary Offering Memorandum. Capitalized terms
not defined herein have the meanings assigned to them in the Preliminary
Offering Memorandum.
|
Issuer
|
||
|
Security
Description
|
8.625%
Senior Subordinated Notes due 2018.
|
|
|
Distribution
|
144A
/ Regulation S – with Registration Rights as described in the Preliminary
Offering Memorandum.
|
|
|
Aggregate
Principal Amount
|
$400,000,000. This
reflects an increase of $50,000,000 from the $350,000,000 issuance listed
in the Preliminary Offering Memorandum.
|
|
|
Gross
Proceeds
|
$400,000,000.
|
|
|
Estimated
Net Proceeds
|
$392,000,000
|
|
|
Coupon
|
8.625%.
|
|
|
Maturity
Date
|
October
1, 2018.
|
|
|
Offering
Price
|
100.000%.
|
|
|
Yield
to Maturity
|
8.625%.
|
|
|
Spread
to Treasury
|
+631
basis points.
|
|
|
Benchmark
|
4%
UST due August 15, 2018.
|
|
|
Ratings
(Moody’s / S&P)1
|
B3
/
B-.
|
1 A
securities rating is not a recommendation to buy, sell or hold securities and
should be evaluated independently of any other rating. The rating is
subject to revision or withdrawal at any time by the assigning rating
organization.
|
Interest
Payment Dates
|
October
1 and April 1, commencing April 1, 2011 (long first
coupon).
|
|
|
Coupon
Record Dates
|
September
15 and March 15.
|
|
|
Optional
Redemption
|
Make-whole
at T+50 prior to October 1, 2014. Callable thereafter at the
following prices:
|
|
For the period below
|
Percentage
|
||
|
On
or after October 1, 2014
|
104.313%
|
||
|
On
or after October 1, 2015
|
102.156%
|
||
|
On
or after October 1, 2016
|
100.000%
|
|
Equity
Clawback
|
35%
at 108.625% (prior to October 1, 2013).
|
|||
|
Change
of Control Offer
|
101%.
|
|||
|
Asset
Sale Offer
|
100%.
|
|||
|
Trade
Date
|
Wednesday,
September 15, 2010.
|
|||
|
Settlement
Date
|
Tuesday,
September 21, 2010 (T+4).
|
|||
|
144A
|
Reg
S
|
|||
|
CUSIP
Numbers
|
01449J
AC9
|
U01457
AA5
|
||
|
Joint
Book-Running Managers
|
▇▇▇▇▇▇▇▇▇
& Company
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
|
||||
|
Citi
|
||||
|
Co-Managers
|
BMO
Capital Markets
|
|||
|
Leerink
▇▇▇▇▇
|
||||
THE
NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. UNLESS THEY ARE
REGISTERED, THE NOTES MAY BE OFFERED ONLY IN TRANSACTIONS EXEMPT FROM OR NOT
SUBJECT TO REGISTRATION UNDER THE SECURITIES ACT, OR ANY STATE SECURITIES
LAWS. ACCORDINGLY, THE NOTES HAVE BEEN OFFERED ONLY TO QUALIFIED
INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OR TO
NON-U.S. PERSONS OUTSIDE THE UNITED STATES UNDER REGULATION S UNDER THE
SECURITIES ACT.
-2-
TO
ENSURE COMPLIANCE WITH INTERNAL REVENUE SERVICE CIRCULAR 230, YOU ARE HEREBY
NOTIFIED THAT ANY DISCUSSION OF FEDERAL TAX MATTERS SET FORTH IN THIS SUMMARY
WAS WRITTEN IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE TRANSACTIONS OR
MATTERS ADDRESSED HEREIN AND WAS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT
BE USED, BY YOU, OR ANY NOTE HOLDER, FOR THE PURPOSE OF AVOIDING TAX-RELATED
PENALTIES UNDER FEDERAL TAX LAW. YOU, OR ANY NOTE HOLDER, SHOULD SEEK
ADVICE BASED ON YOUR, OR THE HOLDER'S, PARTICULAR CIRCUMSTANCES FROM AN
INDEPENDENT TAX ADVISOR.
THIS
COMMUNICATION DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
A copy of
the offering memorandum relating to this offering may be obtained by contacting
▇▇▇▇▇▇▇▇▇ & Company, Inc. at ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, Sachs & Co. at
▇▇▇-▇▇▇-▇▇▇▇ or Citigroup Global Markets Inc. at ▇▇▇-▇▇▇-▇▇▇▇.
Any
disclaimers or other notices that may appear below are not applicable to this
communication and should be disregarded. Such disclaimers were automatically
generated as a result of this communication being sent via Bloomberg or another
email system.
-3-