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Exhibit 10.33
$165,000,000
SEPRACOR INC.
6 1/4% Convertible Subordinated Debentures Due 2005
PURCHASE AGREEMENT
February 5, 1998
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February 5, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
Vector Securities International, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Sepracor Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"INITIAL PURCHASERS") $165,000,000 principal amount of its 6 1/4% Convertible
Subordinated Debentures due 2005 (the "FIRM SECURITIES") to be issued pursuant
to the provisions of an Indenture (the "INDENTURE") to be dated the Closing Date
(as defined below) between the Company and The Chase Manhattan Bank, as Trustee
(the "TRUSTEE"). The Company also proposes to issue and sell to the Initial
Purchasers not more than an additional $24,475,000 principal amount of its 6
1/4% Convertible Subordinated Debentures due 2005 (the "ADDITIONAL SECURITIES")
if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Initial Purchasers, the right to
purchase such 6 1/4% Convertible Subordinated Debentures due 2005 granted to the
Initial Purchasers in Section 2 hereof. The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the "SECURITIES". The
Securities will be convertible into shares of Common Stock, $.10 par value per
share ("Common Stock"), (the "UNDERLYING SECURITIES").
The Securities and the Underlying Securities will be offered without
being registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), to qualified institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act, and to
institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that deliver a letter in the form annexed to the
Final Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
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prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities and the Underlying
Securities, the terms of the offering, a description of the Company and any
material developments relating to the Company occurring after the date of the
most recent financial statements included or incorporated into each Memorandum.
As used herein, the term "Memorandum" shall include in each case the documents
incorporated by reference therein. The terms "SUPPLEMENT", "AMENDMENT" and
"AMEND" as used herein with respect to a Memorandum shall include all documents
deemed to be incorporated by reference in the Preliminary Memorandum or Final
Memorandum that are filed subsequent to the date of such Memorandum with the
Securities and Exchange Commission (the "COMMISSION") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in either
Memorandum complied or will comply when so filed in all material
respects with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder and (ii) the
Preliminary Memorandum does not contain and the Final Memorandum, in
the form used by the Initial Purchasers to confirm sales and on the
Closing Date (as defined in Section 4), will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements
or omissions in either Memorandum based upon information relating to
any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in each Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the
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jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in each Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except
for shares of capital stock of BioSepra Inc., HemaSure Inc. and
Versicor Inc. to the extent described in each Memorandum) are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for a negative pledge under the Company's
credit agreement and the rights of the holders of the Company's Series
B Redeemable Exchangeable Preferred Stock to shares of Common Stock of
BioSepra Inc.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The authorized and outstanding capital stock of the
Company as of September 30, 1997 is as set forth in each Memorandum
under the caption "Capitalization" and the authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in the Final Memorandum. The shares of capital stock of the
Company outstanding prior to the issuance of the Securities have been
duly authorized and are validly issued, fully paid and non-assessable
and their issuance was not subject to any preemptive or similar rights.
(f) The shares of the Company's capital stock outstanding
on the date hereof have been duly authorized and are validly issued,
fully paid and non-assessable.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their terms,
and will be entitled to the benefits of the Indenture and the
Registration Rights Agreement, except as (i) the enforceability thereof
may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally, (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles and (iii) the indemnification provisions of the Registration
Rights Agreement may be unenforceable as a matter of public policy.
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(h) The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved
and, when issued upon conversion of the Securities in accordance with
the terms of the Securities, will be validly issued, fully paid and
non-assessable, and the issuance of the Securities is not, and the
issuance of the Underlying Securities will not be, subject to any
preemptive or similar rights.
(i) Each of the Indenture and Registration Rights
Agreement has been duly authorized, executed and delivered by, and is a
valid and binding agreement of, the Company, enforceable in accordance
with its terms, except as rights to indemnification and contribution
under the Registration Rights Agreement may be limited under applicable
law, except as (i) the enforceability thereof may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Securities
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary except to the
extent such contravention would not singly or in the aggregate have
material adverse effect on the Company and its subsidiaries, taken as a
whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Securities, except
such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Securities
and by Federal and state securities laws with respect to the Company's
obligations under the Registration Rights Agreement.
(k) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum.
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(l) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject other than proceedings accurately described
in all material respects in each Memorandum and proceedings that would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform
its obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Securities or to consummate the transactions
contemplated by the Final Memorandum.
(m) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(n) To the Company's knowledge, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(o) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(p) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE")
of the Company has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) which is or will be
integrated with the
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sale of the Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) engaged in any form
of general solicitation or general advertising in connection with the
offering of the Securities, (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.
(q) It is not necessary in connection with the offer,
sale and delivery of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement to register the Securities under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(r) The Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(s) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, except to the extent that the failure to
so possess would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit, which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(t) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(u) The accountants, Coopers & Xxxxxxx L.L.P., who have
certified certain of the financial statements included or incorporated
by reference in each Memorandum (or any amendment or supplement
thereto) are independent public accountants as required by the
Securities Act.
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(v) The financial statements, together with related
schedules and notes, included or incorporated by reference in each
Memorandum, present fairly the consolidated financial position, results
of operations and cash flows of the Company and its subsidiaries on the
basis stated in each Memorandum at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial
and statistical information and data included or incorporated by
reference in either Memorandum are accurately presented and prepared,
in the case of the financial information, on a basis consistent with
such financial statements and the books and records of the Company and
its subsidiaries.
(w) The Company and each of its subsidiaries are
conducting their business in compliance with all the laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, those of the United States Food and Drug
Administration (the "FDA"), except where failure to be so in
compliance, singly or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(x) Except as disclosed in each Memorandum, the Company
owns or possesses adequate licenses or other rights to use all patents,
patent applications, trademarks, trademark applications, service marks,
service xxxx applications, tradenames, copyrights, manufacturing
processes, formulae, trade secrets and know-how or other information
(collectively, "Intellectual Property") described in either Memorandum
as owned by or used by it in the conduct of its business as such
business is described in each Memorandum or which, to the knowledge of
the Company, is necessary for the sale of its products or proposed
products described in either Memorandum, except as where the failure to
own or possess such rights would not, singly or the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. To the knowledge of the Company, none of the material patent
rights owned or licensed by the Company is unenforceable or invalid.
Except as disclosed in each Memorandum, the Company is not aware of any
patents issued to third parties, pending patent applications filed by
third parties or proprietary rights of any third party which would be
infringed by the sale of any of the Company's products or proposed
products described in either Memorandum, except for such infringements
which would not singly or in the aggregate have a material adverse
effect on the Company and its subsidiaries, taken as a whole. The
Company is not aware of any infringement of any of the Company's or its
subsidiaries' Intellectual Property rights by any third party which
could be reasonably expected to
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have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(y) None of the statements in the Final Memorandum
describing (i) the License Agreement dated June 1, 1993 between the
Company and Xxxxxx Xxxxxxx Dow Inc., (ii) the Exclusive License
Agreement dated as of December 5, 1997 between the Company and
Schering-Plough Ltd. or (iii) the Norastemizole Collaboration and
License Agreement dated on or about February 2, 1998 between the
Company and Xxxxxxx Pharmaceutica N.V. contain any untrue statement of
a material fact or omit to state a material fact necessary in order to
make such statements and the descriptions of such agreements set forth
in the Final Memorandum, in the light of the circumstances under which
such statements and descriptions were made, not misleading.
(z) The Underlying Securities have been approved for
quotation on the Nasdaq National Market.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Initial Purchasers, and each Initial Purchaser, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Firm Securities set forth in
Schedule I hereto opposite its name at a purchase price of 97% of the principal
amount thereof (the "PURCHASE PRICE") plus accrued interest, if any, to the
Closing Date (as defined below).
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Initial Purchasers the Additional Securities, and the Initial Purchasers
shall have a one-time right to purchase, severally and not jointly, up to
$24,475,000 principal amount of Additional Securities at the Purchase Price plus
accrued interest, if any, to the date of payment and delivery. If you, on behalf
of the Initial Purchasers, elect to exercise such option, you shall so notify
the Company in writing not later than 30 days after the date of this Agreement,
which notice shall specify the principal amount of Additional Securities to be
purchased by the Initial Purchasers and the date on which such Additional
Securities are to be purchased. Such date may be the same as the Closing Date
but not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Securities may be purchased as provided in
Section 4 solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities. If any Additional Securities are to be
purchased, each Initial Purchaser agrees, severally and not jointly, to purchase
the principal amount of Additional Securities (subject to such adjustments to
eliminate fractional Securities as you may determine) that bears the same
proportion to the total principal amount of
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Additional Securities to be purchased as the principal amount of Firm Securities
set forth in Schedule I opposite the name of such Initial Purchaser bears to the
total principal amount of Firm Securities.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period ending 90 days after the date of the Final Memorandum,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the sale of the Securities under this Agreement
or (B) the issuance of the Underlying Securities upon conversion of the
Securities or (C) the issuance by the Company of any shares of Common Stock upon
the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof of which the Initial Purchasers have been advised in writing
or (D) the grant of options to employees, directors and consultants of the
Company, provided such options are not exercisable in such 90 day period.
The Company hereby agrees that it will cause each of its directors and
executive officers to enter into separate "lock-up" agreements, each
substantially in the form of Exhibit D hereto, relating to sales and certain
dispositions of shares of Common Stock or any securities convertible into or
exercisable or exchangeable for such Common Stock and the exercise of
registration rights with respect thereto (the "Lock-Up Agreements").
3. Terms of Offering. You have advised the Company that the
Initial Purchasers will make an offering of the Securities purchased by the
Initial Purchasers hereunder on the terms to be set forth in the Final
Memorandum, as soon as practicable after this Agreement is entered into as in
your judgment is advisable.
4. Payment and Delivery. Payment for the Firm Securities shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on February 10,
1998, at a closing to be held at the offices of Xxxx and Xxxx LLP in Boston,
Massachusetts or at such other time and place on the same or such other date,
not later than February 17, 1998, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "CLOSING DATE."
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Payment for any Additional Securities shall be made to the Company in
Federal or other funds immediately available in New York City at a closing to be
held at the offices of Xxxx and Xxxx LLP in Boston, Massachusetts against
delivery of such Additional Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time and place
on the same or on such other date, in any event not later than March 17, 1998,
as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "OPTION CLOSING DATE."
Certificates for the Firm Securities and Additional Securities shall be
in definitive form or global form, as specified by you, and registered in such
names and in such denominations as you shall request in writing not later than
one full business day prior to the Closing Date or the Option Closing Date, as
the case may be. The certificates evidencing the Firm Securities and Additional
Securities shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, for the respective accounts of the several Initial
Purchasers, with any transfer taxes payable in connection with the transfer of
the Securities to the Initial Purchasers duly paid, against payment of the
Purchase Price therefor plus accrued interest, if any, to the date of payment
and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Firm
Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date there shall not have occurred
any change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
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(c) The Initial Purchasers shall have received on the
Closing Date an opinion of Xxxx and Xxxx LLP, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A.
Such opinion shall be rendered to the Initial Purchasers at the request
of the Company and shall so state therein.
(d) You shall have received on the Closing Date an
opinion of Xxxxxxx XxXxxxxx Sterling Scales, Canadian counsel to the
Company, dated the Closing Date and addressed to you, with respect to
the matters set forth in clauses (B) and (I) of Exhibit A, and such
other matters as you and your counsel may reasonably request, relating
to Sepracor Canada Limited.
(e) You shall have received on the Closing Date an
opinion of Xxxxx, Xxxxxx & XxXxxxxx, regulatory counsel for the
Company, dated the Closing Date, to the effect that it has reviewed the
information in each Memorandum under the captions "Risk Factors --
Risks Relating to Sepracor's Pharmaceutical Program -- Regulatory
Approvals and Clinical Trials", and "Business -- Government
Regulation", and to the extent that such information constitutes
matters of law or summaries of matters of law, such information is
complete and correct in all material respects. In addition, based upon
such counsel's representation of the Company in regulatory matters
relating to the FDA, such counsel shall state that it believes that
such information does not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such opinion shall be rendered to the Initial Purchasers at
the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the
Closing Date (i) an opinion of Xxxxxx & Xxxxxxx, patent counsel for the
Company, dated the Closing Date to the effect set forth in Exhibit B-1,
(ii) an opinion of Xxxxxx & Xxxxxxxxxx, a patent counsel to the
Company, dated the closing date to the effect set forth in Exhibit B-2,
and (iii) an opinion of Xxxxxxx Xxxxxxx, Esq. dated the Closing Date to
the effect set forth in Exhibit B-3. Such opinions shall be rendered to
the Initial Purchasers at the request of the Company and shall so state
therein.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion of Ropes & Xxxx, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit
C.
(h) The Initial Purchasers shall have received on each of
the date hereof and the Closing Date a letter, dated the date hereof or
the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers, from Coopers & Xxxxxxx LLP,
independent public
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accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into each
Memorandum; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the
form of Exhibit C hereto, between you and certain shareholders,
officers and directors of the Company relating to sales and certain
other dispositions of shares of common stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(j) The Securities shall have been designated for trading
on PORTAL.
(k) The Underlying Securities shall have been approved
for quotation on the Nasdaq National Market.
(l) The Company shall have executed and delivered the
Indenture and the Registration Rights Agreement and the Trustee shall
have executed and delivered the Indenture.
The several obligations of the Initial Purchasers to purchase
Additional Securities hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
6. Covenants of the Company. In further consideration of the
agreements of the Initial Purchasers contained in this Agreement, the Company
covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge,
prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned
in Section 6(c), as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum,
to furnish to you a copy of each such proposed amendment or supplement
and not to use any such proposed amendment or supplement to which you
reasonably object.
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(c) If, during such period after the date hereof and
prior to the date on which all of the Securities shall have been sold
by the Initial Purchasers, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its
own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented,
will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
each Memorandum and all amendments and supplements thereto, including
all printing costs associated therewith, and the delivering of copies
thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section
6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) any fees charged by rating agencies for the
rating of the Securities, (v) all document production charges and
expenses of counsel to the Initial Purchasers (but not including their
fees for professional services) in connection with the preparation of
this Agreement, (vi) the fees and expenses, if any, incurred in
connection with the admission of the Securities for trading in PORTAL
or any appropriate market system, (vii) the costs and charges of the
Trustee and any transfer agent, registrar or
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depositary, (viii) the cost of the preparation, issuance and delivery
of the Securities, (ix) 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 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 and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (x) all other
cost and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 8, and the last paragraph of Section 10, the Initial
Purchasers will pay all of their costs and expenses, including fees and
disbursements of their counsel, transfer taxes payable on resale of any
of the Securities by them and any advertising expenses connected with
any offers they may make.
(f) Neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(g) Neither the Company nor any Affiliate will solicit
any offer to buy or offer or sell the Securities or the Underlying
Securities by means of 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.
(h) While any of the Securities or the Underlying
Securities remain "restricted securities" within the meaning of the
Securities Act, to make available, upon request, to any seller of such
Securities the information specified in Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to Section 13 or
15(d) of the Exchange Act.
(i) To use its best efforts to permit the Securities to
be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market.
(j) None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers) will
engage in any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities, and the Company and its
Affiliates and each
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person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions requirement of
Regulation S.
(k) During the period of two years after the Closing Date
or the Option Closing Date, if later, the Company will not resell any
of the Securities or the Underlying Securities which constitute
"restricted securities" under Rule 144A that have been reacquired by
it.
(l) To comply with all of the terms and conditions of the
Registration Agreement, and all agreements set forth in the
representation letters of the Company to DTC relating to the approval
of the Securities by DTC for "book entry" transfer.
(m) Prior to any registration of the Securities pursuant
to the Registration Agreement, or at such earlier time as may be so
required, to qualify the Indenture under the 1939 Act and to enter into
any necessary supplemental indentures in connection therewith.
7. Offering of Securities; Restrictions on Transfer.
(a) Each Initial Purchaser, severally and not jointly,
represents and warrants that such Initial Purchaser is a qualified
institutional buyer as defined in Rule 144A under the Securities Act (a
"QIB"). Each Initial Purchaser, severally and not jointly, agrees with
the Company that (i) it will not solicit offers for, or offer or sell,
such 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 (ii) it will solicit
offers for such Securities only from, and will offer such Securities
only to, persons that it reasonably believes to be (1) QIBs or (2)
other institutional accredited investors (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED
INVESTORS") that, prior to their purchase of the Securities, deliver to
such Initial Purchaser a letter containing the representations and
agreements set forth in Appendix A to the Memorandum.
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales
outside the United States that:
(i) such Initial Purchaser understands that no action has
been or will be taken in any jurisdiction by the Company that
would permit a public offering of the Securities, or
possession or distribution of either Memorandum or any other
offering or publicity material relating to the Securities, in
any country or jurisdiction where action for that purpose is
required;
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(ii) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which
it acquires, offers, sells or delivers Securities or has in
its possession or distributes either Memorandum or any such
other material, in all cases at its own expense;
(iii) 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 in accordance with Rule 144A or Regulation S
under the Securities Act or pursuant to another exemption from
the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and
will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering and the Closing
Date (or Option Closing Date, if later), only in accordance
with Rule 903 of Regulation S or as otherwise permitted in
Section 7(a); accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities,
and any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) such Initial Purchaser has (A) not offered or sold
and, prior to the date six months after the Closing Date, will
not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) complied and will comply with
all applicable provisions of the Financial Services Xxx 0000
with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom,
and (C) only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is
of a kind described in Article 11(3) of the Financial Services
Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be
issued or passed on;
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(vi) such Initial Purchaser understands that the
Securities have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it
has not offered or sold, and agrees not to offer or sell,
directly or indirectly, any Securities in Japan or for the
account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities
and Exchange Law of Japan and otherwise in compliance with
applicable provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to
each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S. persons
(i) as part of their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and the closing date, except
in either case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein
in the light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to the
Preliminary Memorandum shall not inure to the benefit of any Initial
Purchaser from
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whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling such
Initial Purchaser, if a copy of the Memorandum (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Initial Purchaser to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Memorandum (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Company to such Initial Purchaser, but only with reference to
information relating to such Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through you expressly for use in
either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx
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Xxxxxxx & Co. Incorporated, in the case of parties indemnified pursuant
to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, 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 from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Initial Purchasers on the other
hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(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 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Initial Purchasers on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Initial Purchasers on the other
hand in connection with the offering of the Securities shall be deemed
to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the Final Memorandum, bear to
the aggregate offering price of the Securities. The relative fault of
the Company on the one hand and of the Initial Purchasers on the other
hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Initial Purchasers' respective obligations to contribute
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pursuant to this Section 8 are several in proportion to the respective
principal amount of Securities they have purchased hereunder, and not
joint.
(e) The Company and the Initial Purchasers agree that it
would not be just or 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 that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities resold by it in the initial
placement of such Securities were offered to investors exceeds the
amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 8 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser or any person controlling any Initial
Purchaser or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in
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New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and (b) in the case of any of the
events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Final
Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date, or the Option Closing Date, as the case may
be, any one or more of the 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 is not
more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Firm Securities set
forth opposite their respective names in Schedule I 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 you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Firm Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Firm Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company 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, in the Final Memorandum or in any
other documents or arrangements may be effected. If, on the Option Closing Date,
any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase
Additional Securities and the aggregate principal amount of Additional
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Additional Securities to be purchased, the
non-defaulting Initial Purchasers shall have the option to (a) terminate their
obligation hereunder to purchase Additional Securities or (b) purchase not less
than the principal amount of Additional Securities that such non-defaulting
Initial Purchasers would have
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been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under this
Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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Very truly yours,
SEPRACOR INC.
By: /s/Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
Vector Securities International, Inc.
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx X. Xxxxxx XX
---------------------------------
Name: Xxxxxxx X. Xxxxxx XX
Title: Managing Director
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SCHEDULE I
PRINCIPAL AMOUNT OF
INITIAL PURCHASER FIRM SECURITIES TO BE
----------------- PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated $99,000,000
Xxxxxx Brothers Inc. 16,500,000
Xxxxx Xxxxxx Inc. 33,000,000
Vector Securities International, Inc. 16,500,000
Total: $165,000,000
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EXHIBIT A
OPINION OF XXXX AND XXXX LLP
The opinion of Xxxx and Xxxx LLP, to be delivered pursuant to Section 5(c) of
the Purchase Agreement shall be to the effect that:
A. The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of Delaware, has the corporate
power and authority to own its property and to conduct its business as described
in the Final Memorandum and is duly qualified to transact business and is in
good standing in Massachusetts.
B. Each domestic subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Final Memorandum; all of the issued shares of capital stock of each domestic
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except for BioSepra Inc.) are owned directly
by the Company, free and clear of all liens, encumbrances, equities or claims
known to such counsel, except for the negative pledge under the Company's credit
agreement and the right of the holders of the Company's Series B Redeemable
Exchangeable Preferred Stock to shares of BioSepra Inc.
C. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
D. The authorized and outstanding capital stock of the Company,
as of September 30, 1997, is as set forth in the Final Memorandum under the
caption "Capitalization". The authorized capital stock of the Company conforms
as to legal matters in all material respects to the description thereof
contained in the Final Memorandum under the caption "Description of Capital
Stock".
E. The shares of Common Stock outstanding on the Closing Date or
Option Closing Date have been duly authorized and are validly issued, fully paid
and non-assessable.
F. The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, will be valid and binding obligations
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27
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
G. The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and non-assessable and the
issuance of the Underlying Securities will not be subject to any preemptive
rights under Delaware law or the Company's Certificate of Incorporation.
H. Each of the Indenture and Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement may be
limited under applicable law.
I. The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Purchase Agreement, the
Indenture, the Registration Rights Agreement and the Securities will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is an exhibit to any of the documents
incorporated by reference into either Memorandum or, to the best of such
counsel's knowledge, any judgment, order or decree of any United States or
Massachusetts governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any United States or Massachusetts governmental body or
agency is required for the performance by the Company of its obligations under
the Purchase Agreement, the Indenture, the Registration Rights Agreement or the
Securities, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Securities and
by Federal and state securities laws with respect to the Company's obligations
under the Registration Rights Agreement.
J. Such counsel does not know of any legal or governmental
proceedings (excluding proceedings relating to patent matters) pending which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject other than proceedings
described
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in the Final Memorandum and proceedings which such counsel believes are not
likely to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform its
obligations under the Purchase Agreement, the Indenture, the Registration Rights
Agreement or the Securities or to consummate the transactions contemplated by
the Final Memorandum.
K. The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
L. The statements in the Final Memorandum under the captions
"Description of Debentures", "Description of Capital Stock," "Plan of
Distribution", "Transfer Restrictions" in the Final Memorandum, insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly summarize the matters referred to therein.
M. The statements in the Final Memorandum under the caption
"Certain Federal Income Tax Considerations," insofar as such statements
constitute a summary of the United States federal tax laws referred to therein,
are accurate and fairly summarize in all material respects the United States
federal tax laws referred to therein.
N. Each document incorporated by reference in the Final
Memorandum (except for financial statements and schedules and other financial
and statistical data included therein as to which such counsel need not express
any opinion), complied as to form when filed with the Commission in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder.
O. No facts have come to such counsel's attention which causes
them to believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief) the Final Memorandum when issued contained, or as of the date such
opinion is delivered contains, any untrue statement of a material fact or
omitted or omits 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.
P. Based upon and assuming the accuracy of the representations,
warranties and agreements of the Company in Sections 1(p), 1(r), 6(f), 6(g) and
6(j) of the Purchase Agreement and of the Initial Purchasers in Section 7 of the
Purchase Agreement and of each institutional accredited investor in the letter
executed by such investor in the form of Appendix A to the Memorandum, it is
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not necessary in connection with the offer, sale and delivery of the Securities
to the Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in accordance with
Section 7 of the Purchase Agreement to register the Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any subsequent
resale of any Security or Underlying Security.
With respect to paragraph O above, counsel may state that its belief is based
upon its participation in the preparation of the Final Memorandum (and any
amendments or supplements thereto) and review and discussion of the contents
thereof and review of the documents incorporated by reference therein, but are
without independent check or verification except as specified.
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EXHIBIT B-1
OPINION OF XXXXXX & XXXXXXX
The opinion of Xxxxxx & Xxxxxxx LLP, patent counsel to the Company,
shall be to the effect that:
1. With respect to issued patents resulting from patent
applications prosecuted by such counsel, such counsel has disclosed, and with
respect to patent applications being prosecuted by such counsel, such counsel
has disclosed or intends to disclose, to the United States Patent and Trademark
Office ("U.S. PTO") any references known by such counsel to be material to the
patentability of the claimed inventions of the United States patents and patent
applications of the Company and its subsidiaries prosecuted by such counsel in
accordance with 37 C.F.R. Section 1.56.
2. With respect to patent applications of the Company being
prosecuted by such counsel, such counsel is of the belief that none of such
references disclosed, or such references that such counsel intends to disclose,
to the U.S. PTO constitute a bar under 35 U.S.C. Section 102 to patentability
of the claims pending in such applications.
3. To such counsel's knowledge, the Company (or its subsidiaries)
is the sole assignee (or a joint assignee and exclusive licensee) of each of the
United States patents and patent applications of the Company and its
subsidiaries being prosecuted by such counsel) (see Attachment I which
attachment lists all of the Company's and its subsidiaries' United States
patents and patent applications being prosecuted by such counsel; except as set
forth in the Final Memorandum, to such counsel's knowledge, no other entity or
individual has any right or claim in any of such patents or patent applications
(or any patent to be issued therefrom) by virtue of any contract, license or
other agreement, known to such counsel, entered into between such entity or
individual and the Company or a subsidiary of the Company.
4. Except as described in the Final Memorandum or in the
documents incorporated by reference into the Final Memorandum, to such counsel's
knowledge, neither the Company nor any subsidiary has received any notice of
infringement of a patent of another as of February __, 1998.
5. Such counsel is not aware of any valid basis for a finding of
unenforceability or invalidity under 35 U.S.C. Section 102 of any United States
patents with respect to which such counsel is patent counsel.
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6. Except as set forth in the Final Memorandum or in the
documents incorporated by reference into the Final Memorandum, there are no
judicial proceedings pending relating to patents or proprietary information to
which the Company or a subsidiary is a party and, to the best of counsel's
knowledge, no such judicial proceedings are threatened by any person;
7. The statements under the captions "Risk Factors - Risks
Relating to Sepracor's Pharmaceutical Development Program - Patent
Uncertainties", "Risk Factors - Patent Interference", "Business - Patents and
Proprietary Technology" and "Business - Legal Proceedings" that relate to
matters for which such counsel acts as patent counsel to the Company, insofar as
such statements constitute matters of law or legal conclusions thereunder are
accurate and correct in all material respects and fairly present such matters;
8. With respect to United States patent matters for which such
counsel acts as patent counsel to the Company, nothing has come to such
counsel's attention which would lead them to believe that the sections of the
Final Memorandum entitled "Risk Factors- Risks Relating to Sepracor's
Pharmaceutical Development Program - Patent Uncertainties", "Risk Factors --
Patent Interference", "Business - Patents and Proprietary Technology" and
"Business - Legal Proceedings", at the time the Final Memorandum was issued or
as of the date of this opinion, contained any untrue statement of material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, not misleading.
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EXHIBIT B-2
OPINION OF XXXXXX & XXXXXXXXXX
The opinion of Xxxxxx & Xxxxxxxxxx, patent counsel to the Company,
shall be to the effect that:
1. With respect to issued patents resulting from patent
applications prosecuted by such counsel, such counsel has disclosed, and with
respect to patent applications being prosecuted by such counsel, such counsel
has disclosed or intends to disclose, to the United States Patent and Trademark
Office ("U.S. PTO") any references known by such counsel to be material to the
patentability of the claimed inventions of the United States patents and patent
applications of the Company and its subsidiaries prosecuted by such counsel in
accordance with 37 C.F.R. Section 1.56.
2. With respect to patent applications of the Company being
prosecuted by such counsel, such counsel is of the belief that none of such
references disclosed, or such references such counsel intends to disclose to the
U.S. PTO constitute a bar under 35 U.S.C. Section. 102 to the patentability of
the claims pending in such applications.
3. To such counsel's knowledge, except for the three patent
applications identified on Attachment I, the Company (or its subsidiaries) is
the sole assignee (or a joint assignee and exclusive licensee) of each of the
United States patents and patent applications being prosecuted by such counsel
(see Attachment I which attachment lists all of the Company's and its
subsidiaries' United States patents and patent applications being prosecuted by
such counsel); except as set forth in the Final Memorandum, to such counsel's
knowledge, no other entity or individual has any right or claim in any of such
patents or patent applications (or any patent to be issued therefrom) by virtue
of any contract, license or other agreement, known to such counsel, entered into
between such entity or individual and the Company and a subsidiary of the
Company.
4. Except as described in the Final Memorandum or in the
documents incorporated by reference into the Final Memorandum, to such counsel's
knowledge, neither the Company nor any subsidiary has received any notice of
infringement of a patent of another as of February __, 1998.
5. Such counsel is not aware of any information or any activity
of the Company or of counsel that, in counsel's opinion, would provide a basis
for a
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finding of unenforceability or invalidity of any patents of the Company or its
subsidiaries.
6. Except as set forth in the Final Memorandum or in the
documents incorporated by reference into the Final Memorandum, there are no
judicial proceedings pending relating to patents or proprietary information to
which the Company or a subsidiary is a party and, to the best of counsel's
knowledge, no such judicial proceedings are threatened by any person;
7. The statements under the captions "Risk Factors - Risks
Relating to Sepracor's Pharmaceutical Development Program - Patent
Uncertainties" "Risk Factors - Patent Interference", "Business - Patents and
Proprietary Technology" and "Business - Legal Proceedings", insofar as such
matters constitute matters of law or legal conclusions thereunder are accurate
and correct in all material respects and fairly present such matters;
8. With respect to United States patent matters, nothing has come
to such counsel's attention which would lead them to believe that the sections
of the Final Memorandum entitled "Risk Factors- Risks Relating to Sepracor's
Pharmaceutical Development Program - Patent Uncertainties", "Risk Factors -
Patent Interference", "Business - Patents and Proprietary Technology" and
"Business - Legal Proceedings", at the time the Final Memorandum was issued or
as of the date of this opinion, contained any untrue statement of material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, not misleading.
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EXHIBIT B-3
OPINION OF XXXXXXX XXXXXXX, ESQ.
The opinion of Xxxxxxx Xxxxxxx, Esq., patent counsel to the Company,
shall be to the effect that:
1. To such counsel's knowledge, based on such counsel's knowledge
of the products and proposed products of the Company and the conduct of the
business of the Company, the sale in the United States of the drug substances
recited as Sepracor ICEs in the Final Memorandum for the associated indications
recited in the Final Memorandum would not infringe any patent claiming (a) a
drug substance mentioned in the Final Memorandum or (b) its use for the
associated indication mentioned in the Final Memorandum of which such counsel is
aware that is not either (i) described in the Final Memorandum, (ii) mentioned
in this letter or (iii) owned by, controlled by, or licensed to Sepracor or its
licensees. Furthermore, to the best of such counsel's knowledge, the information
contained in the Final Memorandum concerning third party patents that may be
relevant to the sale of the products and proposed products of the Company is
correct.
2. Except as described in the Final Memorandum or in the
documents incorporated by reference into the Final Memorandum, to such counsel's
knowledge, neither the Company nor any subsidiary has received any notice of
infringement of or conflict with rights of others with respect to any patent.
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EXHIBIT C
OPINION OF ROPES & XXXX
The opinion of Ropes & Xxxx to be delivered pursuant to Section 5(d) of the
Purchase Agreement shall be to the effect that:
A. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
B. The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued. The Securities have been duly authorized and, when
issued and delivered in accordance with the terms of the Purchase Agreement,
will be validly issued, fully paid and non-assessable, and the issuance of such
Securities will not be subject to any preemptive or similar rights under
Delaware law or the Company's Certificate of Incorporation.
C. The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and non-assessable, and the
issuance of the Underlying Securities will not be subject to any preemptive or
similar rights under Delaware law or the Company's Certificate of Incorporation.
D. Each of the Indenture and Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement may be
limited under applicable law.
E. The statements in the Final Memorandum under the captions
"Description of Securities", "Description of Capital Stock" "Plan of
Distribution" and "Transfer Restrictions", insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
accurately summarizes in all material respects the matters referred to therein.
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G. Nothing has caused such counsel to believe that (except for
financial statements and schedules and other financial and statistical data as
to which such counsel need not express any belief) the Final Memorandum when
issued contained, or as of the date such opinion is delivered contains, any
untrue statement of a material fact or omitted or omits 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.
H. Based upon and assuming the accuracy of the representations,
warranties and agreements of the Company in Sections 1(p), 1(r), 6(f), 6(g) and
6(j) of the Purchase Agreement and of the Initial Purchasers in Section 7 of the
Purchase Agreement and of each institutional accredited investor in the letter
executed by such investor in the form of Appendix A to the Memorandum, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in accordance with
Section 7 of the Purchase Agreement to register the Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any subsequent
resale of any Security or Underlying Security.
With respect to paragraph G above, Ropes & Xxxx may state that their
belief is based upon their participation in the preparation of the Final
Memorandum (and any amendments or supplements thereto) and review and discussion
of the contents thereof (including the review of, but not participation in the
preparation of, the incorporated documents), but are without independent check
or verification except as specified.
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EXHIBIT D
FORM OF LOCK-UP LETTER
_____________, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers, Inc.
Xxxxx Xxxxxx Inc.
Vector Securities International, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into a Purchase Agreement (the "PURCHASE
AGREEMENT") with Sepracor Inc., a Delaware corporation (the "COMPANY"),
providing for the offering (the "OFFERING") by the several Initial Purchasers,
including Xxxxxx Xxxxxxx (the "INITIAL PURCHASERS"), of $_____________ principal
amount of the Company's __% Convertible Subordinated Debentures Due 2005 (the
"SECURITIES"). The Securities will be convertible into shares of Common Stock,
$.10 par value, of the Company (the "COMMON STOCK").
To induce the Initial Purchasers that may participate in the Offering
to continue their efforts in connection with the Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Initial Purchasers, it will not, during the period commencing on
the date hereof and ending 90 days after the date of the final offering
memorandum relating to the Offering (the "FINAL MEMORANDUM"), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to securities of the
Company transferred by gift when the
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donee agrees in writing to be bound hereby or transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Offering. In addition, the undersigned agrees that, without
the prior written consent of Xxxxxx Xxxxxxx on behalf of the Initial Purchasers,
it will not, during the period commencing on the date hereof and ending 90 days
after the date of the Final Memorandum, make any demand for or exercise any
right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will be made only pursuant to
a Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Initial Purchasers.
Very truly yours,
(Name)
(Address)
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