Inverness Medical Innovations, Inc. $150,000,000 7.875% Senior Notes due 2016 UNDERWRITING AGREEMENT
Exhibit 1.1
Inverness Medical Innovations, Inc.
$150,000,000 7.875% Senior Notes due 2016
August 5, 2009
XXXXXXXXX & COMPANY, INC.
XXXXXXX, SACHS & CO.
XXXXX FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
XXXXXXX, SACHS & CO.
XXXXX FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Ladies and Gentlemen:
Introductory. Inverness Medical Innovations, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the several underwriters named in Schedule A (the
“Underwriters”) $150,000,000 aggregate principal amount of its 7.875% senior unsecured notes due
2016 (the “Notes”). The Company’s obligations under the Notes and the Indenture (as defined below)
will be, jointly and severally, unconditionally guaranteed (the “Guarantees”), on a senior
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 Notes
and the Guarantees are referred to herein as the “Securities.” The respective principal amounts of
the Notes to be so purchased by the several Underwriters are set forth opposite their names in
Schedule A hereto. The Notes are to be issued under an indenture as supplemented by a
first supplemental indenture (collectively, the “Indenture”) each to be dated the Closing Date (as
defined below), by and between the Issuers and The Bank of New York Mellon Trust Company, N.A., as
Trustee (the “Trustee”).
Xxxxxxxxx & Company, Inc. (“Jefferies”), Xxxxxxx, Xxxxx & Co. (“GS”) and Xxxxx Fargo
Securities, LLC (“Xxxxx Fargo”) have agreed to act as representatives of the several Underwriters
(in such capacity, the “Representatives”) in connection with the offering and sale of the
Securities.
The Issuers have prepared and filed with the Securities and Exchange Commission (the
“Commission”) a shelf registration statement on Form S-3 (File No. 333 158542), and have prepared a
base prospectus to be used in connection with the public offering and sale of the Securities. Such
base prospectus, as modified and attached to the Preliminary Prospectus (as defined below) is
referred to herein as the “Base Prospectus”. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, in the form in which it became automatically
effective under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed to
be incorporated by reference therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securi-
ties Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.”
The Issuers’ preliminary prospectus supplement dated August 4, 2009 describing the Securities and
the offering thereof, together with the Base Prospectus, is called the “Preliminary Prospectus,”
and the Preliminary Prospectus and any other preliminary prospectus supplement to the Base
Prospectus that describes the Securities and the offering thereof and is made available by the
Issuers and used prior to the filing of the Prospectus (as defined below), together with the Base
Prospectus, is called a “preliminary prospectus.” As used herein, the term “Prospectus” shall mean
the final prospectus supplement to the Base Prospectus that describes the Securities and the
offering thereof (the “Final Prospectus Supplement”), together with the Base Prospectus, in the
form made available by the Issuers and first used by the Underwriters to confirm sales of the
Securities or in the form first made available to the Underwriters by the Issuers to meet requests
of purchasers pursuant to Rule 173 under the Securities Act. As used herein, “Applicable Time” is
5:45 p.m. (New York time) on August 5, 2009. As used herein, “free writing prospectus” means any
“free writing prospectus” within the meaning set forth in Rule 405 under the Securities Act related
to the offering of the Securities contemplated hereby, and “Time of Sale Prospectus” means the
preliminary prospectus, as amended or supplemented immediately prior to the Applicable Time,
together with the information and free writing prospectuses, if any, identified in Schedule
B hereto. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time
of Sale Prospectus” and “Prospectus” shall include the documents incorporated and deemed to be
incorporated by reference therein. All references in this Agreement to the Registration Statement,
any preliminary prospectus, or the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which are “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus (and all other references of like import)
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 Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be, shall be
deemed to mean and include the filing of any document under the Exchange Act which is or is deemed
to be incorporated by reference in the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus or the Prospectus, as the case may be.
This Agreement, the Notes, the Guarantees, and the Indenture are hereinafter sometimes
referred to collectively as the “Note Documents.”
The Issuers hereby confirm their respective agreements with the Underwriters as follows:
Section 1. Representations and Warranties of the Issuers. The Issuers hereby represent and
warrant to each Underwriter, as of the date of this Agreement, as of the Closing Date (as
hereinafter defined) and jointly and severally covenant with each Underwriter, as follows:
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(a) Compliance with Registration Requirements. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment to the Registration Statement for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus), if any, and (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any
offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act,
the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act.
The Registration Statement is an “automatic shelf registration statement,” as defined in Rule
405, which became effective on April 10, 2009. The Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the Company’s use of
the automatic shelf registration form. No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all material respects
with the Securities Act and, if filed by electronic transmission pursuant to XXXXX (except as may
be permitted by Regulation S-T under the Securities Act), was identical in all material respects to
the copy thereof delivered by the Company to the Underwriters for use in connection with the offer
and sale of the Securities. Each of the Registration Statement, and any post-effective amendment
thereto, at the time it became effective and at all subsequent times through the Closing Date,
complied and will comply in all material respects with the Securities Act and, at the time it
became effective and as of the Closing Date (as defined in Section 2), did not and will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. As of the Applicable Time, the
Time of Sale Prospectus did not, and at the Closing Date, the Time of Sale Prospectus, 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. The Prospectus, as amended or supplemented by the Company, if applicable, as of its
date and at all subsequent times through the Closing Date, did not and 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.
The representations and warranties set forth in the three immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, or any post-effective
amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by the Representatives expressly for use therein,
it being understood and agreed that the only such information furnished by the Representatives to
the Company consists of the information described in Section 8(b) below. There are no contracts or
other documents required to be described in the Time of Sale Prospectus or the Prospectus or to be
filed as exhibits to the Registration Statement which have not been described or filed as required.
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The Company is not an “ineligible issuer” in connection with the offering of the Securities
pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities Act. Each free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of (within the meaning, for this
clause only, of Rule 163(c) under the Securities Act) or used or referred to by the Company
complies or will comply in all material respects with the requirements of Rule 433 under the
Securities Act including timely filing with the Commission or retention where required and
legending, and each such free writing prospectus, as of its issue date and at all subsequent times
through the Closing Date did not, does not and will not (i) include any information that
conflicted, conflicts with or will conflict with the information contained in the Registration
Statement, the Prospectus or any preliminary prospectus, including any document incorporated by
reference therein, in each case not superseded or modified, or (ii) when taken together with the
Time of Sale Prospectus 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 for the free writing prospectuses, if any, identified in
Schedule B hereto, and Road Shows, if any, furnished by the Company to you before first use
and identified in Schedule C hereto, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any free writing prospectus. “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). Each Road Show that was prepared by or behalf of (within the
meaning, for this clause only, of Rule 163(c) under the Securities Act) or used or referred to by
the Company as of its issue date and at all subsequent times through the Closing Date did not, does
not and will not (i) include any information that conflicted, conflicts with or will conflict with
the information contained in the Registration Statement, the Prospectus or any preliminary
prospectus, including any document incorporated by reference therein, in each case not superseded
or modified, or (ii) when taken together with the Time of Sale Prospectus 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.
(b) Offering Materials Furnished to Underwriters. The Company has delivered to the
Representatives three complete manually signed copies of the Registration Statement, each amendment
thereto, if any, and of each consent and certificate of experts filed as a part thereof, if any,
and conformed copies of the Registration Statement, each amendment thereto (without exhibits), if
any, and preliminary prospectuses, the Time of Sale Prospectus, the Prospectus, as amended or
supplemented, and any free writing prospectus of the Company, in such quantities and at such places
as the Representatives have reasonably requested for each of the Underwriters.
(c) Distribution of Offering Material by the Issuers. The Issuers have not distributed and
will not distribute, prior to the completion of the Underwriters’ distribution of the Securities,
any offering material in connection with the offering and sale of the Securities other
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than a preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus reviewed and consented to by the Representatives, or the Registration Statement.
(d) The Underwriting 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 Time of Sale Prospectus.
(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 Time of Sale Prospectus.
The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”).
(f) Authorization of the Notes. The Notes have been duly and validly authorized for issuance
and sale to the Underwriters by the Company, and when issued and delivered by or on behalf of the
Company and authenticated by the Trustee against payment therefor by the Underwriters in accordance
with the terms of this Agreement and the Indenture, the 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 Notes, when issued, authenticated and delivered, will conform in
all material respects to the description thereof in the Time of Sale Prospectus.
(g) Authorization of the Guarantees. Each Guarantee has been duly and validly authorized by
the applicable Guarantor and, when the Notes are issued and delivered by or on behalf of the
Company and authenticated by the Trustee against payment therefor by the Underwriters 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. The Guarantees, when
issued, authenticated and delivered, will conform in all material respects to the description
thereof in the Time of Sale Prospectus.
(h) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
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(i) No Material Adverse Change. Except as otherwise disclosed in the Time of Sale Prospectus,
subsequent to the respective dates as of which information is given in Time of Sale Prospectus: (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 Xxxxxxx, 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 filed with the Commission as a part of
the Registration Statement and included in the Prospectus and Time of Sale Prospectus (each, an
“Applicable Prospectus” and collectively, the “Applicable Prospectuses”), 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.
(k) Preparation of the Financial Statements. The financial statements filed with the
Commission as a part of the Registration Statement and included in the Time of Sale Prospectus and
the Prospectus 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. The supporting schedules included in
the Registration Statement present fairly the information required to be stated therein. 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.
No other financial statements or supporting schedules are required to be included in the
Registration Statement or any Applicable Prospectus. The financial data set forth in each
Applicable Prospectus under the caption “Summary—Summary Consolidated Financial Information”
fairly present the information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement and each Applicable Prospectus. The
pro forma condensed financial statements of the Company and its subsidiaries and the related notes
thereto included in the Time of Sale Prospectus and the Prospectus 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 de-
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scribed 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
filed with the Commission as a part of the Registration Statement and included in any Applicable
Prospectus.
(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.
(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 each Applicable Prospectus 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 D 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 D 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
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indirectly, any corporation, association or other entity other than (i) the subsidiaries
listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2008 and the subsidiaries listed in Schedule D attached hereto and (ii) such other
entities omitted from Exhibit 21 or Schedule D 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 Diamics, Inc. and SPDH, Inc.
(n) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in each Applicable Prospectus in the Company’s balance
sheet as of December 31, 2008 (other than for subsequent issuances, if any, pursuant to employee
benefit plans described in the Time of Sale Prospectus or upon the exercise of outstanding options
or warrants described in each Applicable Prospectus). 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 each Applicable Prospectus. 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 each Applicable Prospectus accurately and fairly presents, in all material
respects, the information required to be shown with respect to such plans, arrangements, options
and rights.
(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 and
the Indenture, the consummation by the Issuers of the transactions contemplated hereby and by each
Applicable Prospectus 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
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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
each Applicable Prospectus, 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 and (3) such as may be
required from the FINRA. 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 each Applicable
Prospectus, 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.
(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 each Applicable Prospectus (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
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rights of any third party under any patent. Except as disclosed in each Applicable
Prospectus, 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 each
Applicable Prospectus 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 each Applicable Prospectus 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 each Applicable
Prospectus 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 each Applicable Prospectus,
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 each such Applicable
Prospectus. 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 each Applicable Prospectus 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.
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 Prop-
-10-
erty 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 each Applicable Prospectus, 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(k) above (or elsewhere in any Applicable Prospectus), 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.
(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(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 “In-
-11-
vestment 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 each Applicable Prospectus, 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 1934 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 each Applicable Prospectus which have not been described as required.
(y) S-3 Eligibility. At the time the Registration Statement originally became effective and
at the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 was filed
with the Commission, the Company met the applicable requirements for use of Form S-3 under the
Securities Act. The Company meets the requirements for use of Form S-3 under the Securities Act
specified in Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority (the “FINRA”).
(z) Exchange Act Compliance. The documents incorporated or deemed to be incorporated by
reference in each Applicable Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in each Applicable Prospectus, at the time
the Registration Statement and any amendments thereto become effective and 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.
(aa) Statistical and Market-Related Data. The statistical, demographic and market-related
data included in the Registration Statement and each Applicable Prospectus are
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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.
(bb) 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 Registration Statement and each Applicable Prospectus.
(cc) 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 Time of Sale
Prospectus; 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, 2008, and since December 31, 2008, 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 Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any related rules and regulations
promulgated by the Commission.
(dd) Compliance with Environmental Laws. Except as described in each Applicable Prospectus
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 ac-
-13-
tions, 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.
(ee) 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.
(ff) Brokers. Except for the underwriting discounts and commissions payable to the
Underwriters as described in each Applicable Prospectus, there is no broker, finder or other party
that is entitled to receive from the Company any brokerage or finder’s fee or other fee or
commission as a result of any transactions contemplated by this Agreement.
(gg) 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.
(hh) 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 Xxxxxxxx-Xxxxx Act
-14-
and the rules and regulations of the Commission and the New York Stock Exchange promulgated
thereunder.
(ii) Dividend Restrictions. Except as otherwise described in each Applicable Prospectus and
except as set forth in the Senior Credit Documents, 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.
(jj) 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.
(kk) 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.
(ll) 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.
-15-
(mm) Summaries of Certain Sections. The statements in the Time of Sale Prospectus and the
Prospectus under the headings “Description of common stock we may offer,” “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 subheadings “Business—Government Regulation” and “Business—Legal Proceedings” in the
Company’s 10-K/A for the fiscal year ended December 31, 2008 and under the heading “Item 1. Legal
Proceedings” in the Company’s 10-Q for the fiscal quarter ended March 31, 2009, fairly summarize
the matters therein described in all material respects.
(nn) 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 each of the Time of Sale
Prospectus and the Prospectus 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.
(oo) 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 Time of Sale
Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(pp) Pro forma Financial Statements. The unaudited pro forma financial statements (including
the notes thereto) incorporated by reference into the Time of Sale Prospectus (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 Time of Sale Prospectus are reasonable, and the adjustments
used therein are appropriate to give effect to the transactions or circumstances referred to
therein.
(qq) 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,
-16-
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.
Any certificate signed by any officer of the Company or any of its subsidiaries and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
The Issuers acknowledge that the Underwriters and, for purposes of the opinions to be
delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consent 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 Underwriters, 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 Underwriters
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 Notes shall be
96.644% of their principal amount.
(b) Delivery and Payment. Delivery of the Securities to be purchased by the Underwriters and
payment therefor shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m. New York time, on August 11, 2009, or such other time and date not
later than 1:30 p.m. New York time on August 25, 2009 as the Representatives shall designate by
notice to the Company (the time and date of such closing are called the “Closing Date”). The
Company hereby acknowledges that circumstances under which the Representatives may provide notice
to postpone the Closing Date as originally scheduled include, but are in no way limited to, any
determination by the Company or the Representatives to recirculate to the public copies of an
amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 10.
(c) Public Offering of the Securities. The Representatives hereby advise the Issuers that the
Underwriters intend to offer for sale to the public, initially on the terms set forth in the Time
of Sale Prospectus and the Prospectus, their respective portions of the Securities as soon after
this Agreement has been executed and the Registration Statement has been declared effective as the
Representatives, in their sole judgment, have determined is advisable and practicable.
(d) 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 Underwriters, to accept delivery of and receipt for, and
-17-
make payment of the purchase price for, the Securities. Xxxxxxxxx, XX and Xxxxx Fargo
individually and not as a Representative of the Underwriters, may (but shall not be obligated to)
make payment for any Securities to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the Closing Date for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(e) Delivery of the Securities. The Securities shall be delivered by the Issuers to the
Underwriters (or as the Underwriters direct) through the facilities of The Depository Trust Company
against payment by the Underwriters of the purchase price therefor. The Securities shall be
evidenced by one or more certificates in global form registered in such names as the Underwriters
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.
Section 3. Additional Covenants of the Issuers. The Issuers jointly and severally further
covenant and agree with each Underwriter as follows:
(a) Delivery of Registration Statement, Time of Sale Prospectus and Prospectus. The Issuers
shall furnish to you, upon request, without charge, three signed copies of the Registration
Statement and any amendments thereto (including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement and any amendments thereto (without
exhibits thereto) and shall 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 3(e) or 3(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus and any supplements and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Representatives’ Review of Proposed Amendments and Supplements. Prior to amending or
supplementing the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus (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 filing or use thereof, a copy of each
such proposed amendment or supplement, and the Issuers shall not file or use any such proposed
amendment or supplement without the Representatives’ consent, and the Issuers shall file with the
Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) Free Writing Prospectuses. The Issuers shall furnish to the Representatives for review, a
reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each
proposed free writing prospectus or any amendment or supplement thereto to be prepared by or on
behalf of, used by, or referred to by the Issuers, and the Issuers shall not file, use or refer to
any proposed free writing prospectus or any amendment or supplement thereto without the
Representatives’ consent. The Issuers shall furnish to each Underwriter, without charge, as many
copies of any free writing prospectus prepared by or on behalf of, or used by the Issuers, as such
Underwriter may reasonably request. If at any time when a prospectus is required by the Securities
Act (including, without limitation, pursuant to Rule 173(d)) to be deliv-
-18-
ered in connection with sales of the Securities (but in any event if at any time through and
including the Closing Date) there occurred or occurs an event or development as a result of which
any free writing prospectus prepared by or on behalf of, used by, or referred to by the Issuers
conflicted or would conflict with the information contained in the Registration Statement or
included or would include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Issuers shall promptly amend
or supplement such free writing prospectus to eliminate or correct such conflict or so that the
statements in such free writing prospectus as so amended or supplemented will not include an 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 prevailing at such subsequent time, not
misleading, as the case may be; provided, however, that prior to amending or supplementing any such
free writing prospectus, the Issuers shall furnish to the Representatives for review, a reasonable
amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended
or supplemented free writing prospectus, and the Issuers shall not file, use or refer to any such
amended or supplemented free writing prospectus without the Representatives’ consent.
(d) Filing of Underwriter Free Writing Prospectuses. The Issuers shall not take any action
that would result in an Underwriter or the Issuers being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) Final Term Sheet. The Issuers will prepare a final term sheet (the “Final Term Sheet”) 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 Time of Sale Prospectus
shall not contain an untrue statement of a material fact or omit to state a material fact necessary
to make the statements in the Time of Sale Prospectus, in the light of the circumstances under
which they were made, not misleading), in form and substance reasonably satisfactory to the
Representatives, and shall file such Final Term Sheet as an issuer free writing prospectus pursuant
to Rule 433 under the Act prior to the close of business two business days after the date hereof;
provided that the Issuers shall provide the Representatives with copies of any such Final Term
Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such
document to which the Representatives or counsel to the Underwriters shall reasonably object.
(f) Amendments and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is
being used to solicit offers to buy the Securities at a time when the Prospectus is not yet
available to prospective purchasers and any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale
Prospectus does not include an 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 when delivered
to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement, or if, in the reasonable opinion of counsel for the Underwriters, it is
otherwise necessary to amend or supplement the Time of Sale Prospectus to comply
-19-
with applicable law, including the Securities Act, the Issuers shall (subject to Sections 3(b)
and 3(c)) promptly prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to any dealer upon request, amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will
not include an 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 when delivered to a
prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law, including the Securities
Act.
(g) Securities Act Compliance. After the date of this Agreement, through the last time that a
prospectus is required by the Securities Act (including, without limitation, pursuant to Rule
173(d)) to be delivered in connection with sales of the Securities (but in any event at any time
through and including the Closing Date), the Issuers shall promptly advise the Representatives in
writing (i) of the receipt of any comments of, or requests for additional or supplemental
information from, the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus of the Company or the
Prospectus, (iii) of the time and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment thereto or any
amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the
Prospectus or of any order preventing or suspending the use of any preliminary prospectus, the Time
of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing the Securities from any securities exchange upon which they are
listed for trading or included or designated for quotation, or of the threatening or initiation of
any proceedings for any of such purposes. If the Commission shall enter any such stop order at any
time through the last time that a prospectus is required by the Securities Act (including, without
limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Securities
(but in any event at any time through and including the Closing Date), the Company will use its
reasonable commercial efforts to obtain the lifting of such order at the earliest possible moment.
Additionally, the Company agrees that it shall comply with the provisions of Rule 424(b) and Rule
433, as applicable, under the Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) or Rule 433 were received in a timely manner
by the Commission. If, after the date of this Agreement and through the last time that a
prospectus is required by the Securities Act (including, without limitation, pursuant to Rule
173(d)) to be delivered in connection with sales of the Securities (but in any event if at any time
through and including the Closing Date), the Company receives notice pursuant to Rule 401(g)(2)
under the Securities Act from the Commission or otherwise ceases to be eligible to use the
automatic shelf registration form, the Company shall promptly advise the Representatives in writing
of such notice or ineligibility and, if Securities remain unsold by the Underwriters, the Company
will (i) promptly file a new registration statement or post-effective amendment on the proper form
relating to the Securities, (ii) use its reasonable commercial efforts to cause such registration
statement or post-effective amendment to be declared effective by the Commission as soon as
practicable and (iii) promptly notify the Representatives in writing of such effectiveness. The
Issuers shall pay the fees applicable to the Registration Statement in
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connection with the offering of the Securities within the time required by Rule 456(b)(1)(i)
under the Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in
compliance with Rule 456(b) and Rule 457(r) under the Act.
(h) Amendments and Supplements to the Prospectus and Other Securities Act Matters. If any
event shall occur or condition exist as a result of which it is necessary to amend or supplement
the Prospectus so that the Prospectus does not include an 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 when the Prospectus is delivered to a purchaser, not misleading, or if in the
reasonable opinion of the Representatives or counsel for the Underwriters it is otherwise necessary
to amend or supplement the Prospectus to comply with applicable law, including the Securities Act,
the Issuers shall (subject to Section 3(b) and 3(c)) promptly prepare, file with the Commission and
furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or supplemented will not include
an 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 when the Prospectus is delivered to a
purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with
applicable law, including the Securities Act. Neither the Representatives’ consent to, or delivery
of, any such amendment or supplement shall constitute a waiver of any of the Issuers’ obligations
under Sections 3(b) or (c).
(i) Blue Sky Compliance. The Issuers shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Securities for sale under (or obtain exemptions from
the application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Securities. The Issuers
shall not be required to qualify as a foreign corporation or other entity or to take any action
that would subject it to general service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to taxation as a foreign corporation or other
entity. The Issuers will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Issuers shall use their reasonable commercial efforts to obtain the withdrawal
thereof at the earliest possible moment.
(j) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption “Use of Proceeds” in each Applicable Prospectus.
(k) Trustee. The Issuers shall engage and maintain, at the Company’s expense, a trustee for
the Securities.
(l) Earnings Statement. As soon as practicable, but in any event not later than 16 months
after the date of this Agreement, the Company will make generally available to its security holders
and to the Representatives an earnings statement (which need not be audited) covering a period of
at least twelve months beginning after the date of this Agreement which
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shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(m) Exchange Act Compliance. During the period through the last time that a prospectus is
required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be
delivered in connection with sales of the Securities, the Company shall file all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner
and within the time periods required by the Exchange Act.
(n) 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
Company or any of its subsidiaries to register as an investment company under the Investment
Company Act.
(o) No Stabilization or Manipulation; Compliance with Regulation M. The Company 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 Company
will, and shall cause each of its 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 Company will, and shall cause each of its 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.
(p) 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.
(q) DTC Book-Entry. The Company will comply with its 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.
(r) Financial Statements. Prior to the Closing Date, the Company will furnish without charge
to the Underwriters, (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 Time of Sale
Prospectus and the Prospectus, (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 Underwriters shall reasonably request.
The Representatives, on behalf of the Underwriters, 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.
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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 Underwriters, (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, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of
experts), the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or
on behalf of (within the meaning, for this clause only, of Rule 163(c) under the Securities Act),
used by, or referred to by the Company, and each preliminary prospectus, and all amendments and
supplements thereto, and this Agreement, (vi) upon receipt of such evidentiary documentation as the
Company shall reasonably request, all filing fees, reasonable attorneys’ fees and expenses incurred
by the Company or the Underwriters 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, and, if requested by the Representatives,
preparing and printing a “Blue Sky Survey” or memorandum and any supplements thereto, advising the
Underwriters 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 Underwriters in connection with, the FINRA’s review, if any, and approval of the
Underwriters’ 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, (xi) the performance
by the Company of its other obligations under the Note Documents and (xii) all other fees, costs
and expenses of the nature referred to in Item 14 of Part II of the Registration Statement. Upon
the consummation of the transactions contemplated hereby, the Underwriters 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 Underwriters, such method to be selected by the Underwriters in
their sole discretion, an amount equal to 50% of the expenses described in Section 4(viii). Except
as provided in this Section 4, Section 7, Section 8 and Section 9 hereof, the Underwriters shall
pay their own expenses, including the fees and disbursements of their counsel.
Section 5. Covenant of the Underwriters. Each Underwriter severally and not jointly,
covenants with the Issuers not to take any action that would result in any Issuer being required to
file with the Commission pursuant to Rule 433(d) under the Securities Act a free
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writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by
such Issuer thereunder, but for the action of the Underwriter.
Section 6. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters 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 Sections 1 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 Xxxxxxx, LLP, independent public or certified public accountants for the
Company, a letter dated the date hereof addressed to the Underwriters, in form and
substance satisfactory to the Representatives (i) containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters, delivered according to Statement of Auditing Standards No. 72 (or any
successor bulletin), with respect to the audited and unaudited financial statements
and certain financial information contained in the Registration Statement, the Time
of Sale Prospectus, and each free writing prospectus of the Company, if any, (and
the Representatives shall have received an additional three conformed copies of such
accountants’ letter for each of the several Underwriters), 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. The Representatives shall have received from BDO
Xxxxxxx, LLP, independent public or certified public accountants for the Company, a
letter dated the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives (i) containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 (or any successor
bulletin), with respect to the audited and unaudited financial statements and
certain financial information contained in the Prospectus (and the Representatives
shall have received an additional three conformed copies of such accountants’ letter
for each of the several Underwriters), 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
KPMG LLP, independent public or certified public accountants for Matria Healthcare,
Inc. (“Matria”), a letter dated the date hereof addressed to the Underwriters, in
form and substance satisfactory to the Representatives (i) containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters, delivered according to Statement of Auditing Xxxx-
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dards No. 72 (or any
successor bulletin), with respect to the audited and unaudited financial statements
and certain financial information of Matria contained in the
Registration Statement, the Time of Sale Prospectus, and each free writing
prospectus of the Company, if any, (and the Representatives shall have received an
additional three conformed copies of such accountants’ letter for each of the
several Underwriters), and (ii) confirming that they are (A) independent public or
certified public accountants with respect to Matria 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.
(iii) Prior to the Applicable Time, the Representatives shall have received
from Xxxxx Xxxxxxxx Zhonghua, independent public or certified public accountants for
ACON Laboratories, Inc. (“ACON”), a letter dated the date hereof addressed to the
Underwriters, in form and substance satisfactory to the Representatives (i)
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin), with respect to the audited
and unaudited financial statements and certain financial information of ACON
contained in the Registration Statement, the Time of Sale Prospectus, and each free
writing prospectus of the Company, if any, (and the Representatives shall have
received an additional three conformed copies of such accountants’ letter for each
of the several Underwriters), and (ii) confirming that they are (A) independent
public or certified public accountants with respect to ACON 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) Compliance with Registration Requirements; No Stop Order; No Objection from FINRA. For
the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including
the information previously omitted from the Registration Statement pursuant to Rule
430B under the Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the information
previously omitted pursuant to such Rule 430B, and such post-effective amendment
shall have become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement,
or any post-effective amendment to the Registration Statement, shall be in effect
and no proceedings for such purpose shall have been instituted or threatened by the
Commission; and
(iii) the FINRA shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
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(c) 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.
(d) Opinion of Counsel for the Company. On the Closing Date the Representatives shall have
received the opinion of Xxxxx Xxxx 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 Underwriters (and the Representatives shall have received an
additional three signed copies of such counsel’s legal opinion for each of the several
Underwriters). 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 or Delaware, dated as of such Closing Date, in form and substance satisfactory to the
Representatives and counsel to the Underwriters (and the Representatives shall have received an
additional three signed copies of each such counsel’s legal opinion for each of the several
Underwriters).
(e) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the opinion of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Underwriters, in
form and substance satisfactory to the Underwriters, dated as of such Closing Date.
(f) 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
subsections (b)(ii) and (c)(ii) of this Section 6, 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 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) 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; and
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(iv) no employee of any Issuer nor any person acting on their behalf (within
the meaning, for this clause only, of Rule 163(c) under the Securities Act) has
disseminated any material that would constitute a free writing prospectus filed
or required to be filed under Rule 433(d) pursuant to the Securities Act other
than the Final Term Sheet.
(g) Bring-down Comfort Letters. On the Closing Date, the Representatives shall have received
from each of (i) BDO Xxxxxxx, LLP, independent public or certified public accountants for the
Company, (ii) KPMG LLP, independent public or certified public accountants for Matria and (iii)
Xxxxx Xxxxxxxx Zhonghua, independent public or certified public accountants for ACON, 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 6 (with respect to the Prospectus in the case of clause (ii)), 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 three
conformed copies of such accountants’ letter for each of the several Underwriters).
(h) Concateno. The Scheme of Arrangement of Concateno PLC under Part 26 of the United Kingdom
Companies Act 2006 shall have become effective in accordance with its terms. Any waiver of this
condition shall require the written consent of the Company.
(i) 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.
(j) Additional Documents. The Issuers and the Trustee shall have executed and delivered the
Indenture and the Securities and the Underwriters shall have received copies thereof. On or before
the Closing Date, the Representatives and counsel for the Underwriters 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 Underwriters.
If any condition specified in this Section 6 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 7, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
Section 7. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the
Representatives pursuant to Section 6 or Section 11, or if the sale to the Under-
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writers 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 Underwrit
ers (or such Underwriters 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 Underwriters 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.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Issuers jointly and severally agree to indemnify
and hold harmless each Underwriter, its officers and employees, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act or the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such Underwriter 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 Registration Statement,
or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule
430B under the Securities Act, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading; or (ii)
any untrue statement or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Time of Sale Prospectus, any Road Show, any free writing prospectus that the
Issuers have used, referred to or filed, or are required to file, pursuant to Rule 433(d) of the
Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter 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) or (ii) above, provided that the Issuers shall not
be liable under this clause (iii) to any Underwriter, 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 Underwriter through its bad faith or willful misconduct and to reimburse each Underwriter 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 Underwriter 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 Registration Statement, any prelimi-
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nary prospectus, the
Time of Sale Prospectus, any such free writing prospectus or the Prospectus (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 8(a) shall be in
addition to any liabilities that the Issuers may otherwise have.
(b) Indemnification of the Issuers and their Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Issuers, each of their directors
(including managers, members, partners and others having similar positions, who, in each case in
this parenthetical, have liability for the Registration Statement under Section 11 of the
Securities Act), each of their officers (including managers, members, partners and others having
similar positions, who, in each case in this parenthetical, have liability for the Registration
Statement under Section 11 of the Securities Act) who signed the Registration Statement 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 Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the
Securities Act, or any preliminary prospectus, the Time of Sale Prospectus, any free writing
prospectus that the Issuers have used, referred to or filed, or are required to file, pursuant to
Rule 433(d) of the Securities Act or the Prospectus (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 any
preliminary prospectus, the Time of Sale Prospectus, any such free writing prospectus, or the
Prospectus, 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 Registration Statement, such amendment thereto,
such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus that the
Issuers have used, referred to or filed, or are required to file, pursuant to Rule 433(d) of the
Securities Act, the Prospectus (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 Underwriters have furnished
to the Issuers expressly for use in the Registration Statement, any amendment thereto, any
preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Issuers
have filed, or are required to file, pursuant to Rule 433(d) of the Securities Act or the
Prospectus (or any amendment or supplement thereto) are the statements set
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forth in the table in
the first paragraph and as set forth in the third paragraph, the third sentence of the sixth
paragraph, the seventh paragraph and the eighth paragraph, under the caption “Underwriting” in the
Registration Statement, the Time of Sale Prospectus and the Prospectus. The
indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 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 this Section 8, 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 9 below or
otherwise under the indemnity agreement contained in this Section 8, 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 this Section 8 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 8(a)
above) or by the Company (in the case of counsel for the indemnified parties referred to in Section
8(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.
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(d) Settlements. The indemnifying party under this Section 8 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 8) 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 8(c) hereof, the
indemnifying party agrees that it shall be liable (to the extent provided in this Section 8) 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 8) 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.
Section 9. Contribution. If the indemnification provided for in Section 8 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 Underwriters, 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 Underwriters, 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
Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by
the Issuers, and the total underwriting discounts and commissions received by the Underwriters, in
each case as set forth on the front cover page of the Prospectus bear to the aggregate initial
public offering price of the Securities as set forth on such cover. The relative fault of the
Issuers, on the one hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Issuers, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent,
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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 8(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 8(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(c) for purposes of
indemnification.
The Issuers and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions received by such
Underwriter in connection with the Securities underwritten by it and distributed to the public. 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 Underwriters’ obligations to contribute pursuant to this Section
9 are several, and not joint, in proportion to their respective underwriting commitments as set
forth opposite their respective names on Schedule A. For purposes of this Section 9, each
officer and employee of an Underwriter and each person, if any, who controls an Underwriter within
the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director (including managers, members, partners and others having
similar positions who, in each case in this parenthetical, have liability for the Registration
Statement under Section 11 of the Securities Act) of the Issuers, each officer (including managers,
members, partners and others having similar positions who, in each case in this parenthetical, have
liability for the Registration Statement under Section 11 of the Securities Act) of the Issuers who
signed the Registration Statement, 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 10. Default of One or More of the Several Underwriters. If, on the Closing Date, any
one or more of the several Underwriters 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 Underwriter or Underwriters 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 Underwriters, but if no such arrangements are
made by the Closing Date, the other Underwriters 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 Underwriters, or in such other proportions as may
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be specified by
the Representatives with the consent of the non-defaulting Underwriters, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters
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 8 and Section 9 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 Registration Statement and the Prospectus or any other documents or
arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the purchase of the Securities by the
Underwriters 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 Time of Sale Prospectus or
the Prospectus 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 11 shall be without liability on the part of (a)
the Issuers to any Underwriter, except that the Issuers shall be obligated to reimburse the
expenses of the Representatives and the Underwriters pursuant to Sections 4 and 7 hereof, (b) any
Underwriter to the Issuers, or (c) of any party hereto to any other party except as aforesaid and
except that the provisions of Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
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Section 12. 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 Underwriters, on the other hand, (b) in connection with the
offering contemplated hereby and the process leading to such transaction each Underwriter is and
has been acting solely as a principal and is not the agent or fiduciary of such party, or its
stockholders, creditors or employees, as applicable, or any other party, (c) no Underwriter 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
Underwriter has advised or is currently advising any Issuer on other matters) and no Underwriter
has any obligation to such party with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Issuers, and (e) the Underwriters 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 13. Certain Acknowledgments. The Issuers understand that each of the Underwriters 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.
Each Underwriter, 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
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€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 Act, 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;
(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
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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 prospectus supplement 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
(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
Preliminary Prospectus or the Prospectus.
Section 14. 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 Underwriters 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 Underwriter 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 15. 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:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx llp
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Company:
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 16. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of the employees, officers (including managers, members, partners and others having similar
positions who, in each case in this parenthetical, have liability for the Registration Statement
under Section 11 of the Securities Act), directors (including managers, members, partners and
others having similar positions who, in each case in this parenthetical, have liability for the
Registration Statement under Section 11 of the Securities Act) and controlling persons referred to
in Section 8 and Section 9, 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 Underwriters merely by reason of such purchase.
Section 17. 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.
-37-
Section 18. 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 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.
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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 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 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 Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any
amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
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,
| INVERNESS MEDICAL INNOVATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
[Signature Pages to Underwriting Agreement]
| As Guarantors: ADVANTAGE DIAGNOSTICS CORPORATION ALERE LLC ALERE CDM LLC ALERE HEALTHCARE OF ILLINOIS, INC. ALERE HEALTH IMPROVEMENT COMPANY ALERE HEALTH SYSTEMS, INC. ALERE MEDICAL, INC. ALERE WELLOLOGY, INC. ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC AMEDITECH INC. APPLIED BIOTECH, INC. BINAX, INC. BIOSITE INCORPORATED CHOLESTECH CORPORATION FIRST CHECK DIAGNOSTICS CORP. FIRST CHECK ECOM, INC. GENECARE MEDICAL GENETICS CENTER, INC. HEMOSENSE, INC. IM US HOLDINGS, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
| Title (respectively): | Vice President; Vice President and Treasurer; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President and Treasurer; Vice President and Treasurer; Vice President, Finance; Vice President, Finance; General Manager; Vice President; Vice President, Finance; Vice President, Finance; Vice President, Finance and Chief Financial Officer; Vice President, Finance; Vice President and Treasurer; Vice President; Treasurer; President | |||
[Signature Pages to Underwriting Agreement]
| As Guarantors (continued): INNOVACON, INC. INNOVATIONS RESEARCH, LLC INNOVATIVE MOBILITY, LLC INSTANT TECHNOLOGIES, INC. INVERNESS MEDICAL, LLC INVERNESS MEDICAL — BIOSTAR INC. INVERNESS MEDICAL INNOVATIONS NORTH AMERICA, INC. INVERNESS MEDICAL INTERNATIONAL HOLDING CORP. INVERNESS MEDICAL INTERNATIONAL HOLDING CORP. II ISCHEMIA TECHNOLOGIES, INC. IVC INDUSTRIES, INC. MATRITECH, INC. OSTEX INTERNATIONAL, INC. QUALITY ASSURED SERVICES, INC. REDWOOD TOXICOLOGY LABORATORY, INC. RTL HOLDINGS, INC. SELFCARE TECHNOLOGY, INC. XXXXXXX LABORATORIES, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | ||||
| Title (respectively): | Vice President, Finance; Vice President, Finance; Chief Financial Officer; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President, Finance; President; President; Vice President, Finance; Vice President; Vice President, Finance; Vice President, Finance; Chief Financial Officer; Vice President, Finance; Vice President, Finance; Vice President, Finance; Vice President | |||
[Signature Pages to Underwriting Agreement]
| As Guarantors (continued): MATRIA OF NEW YORK, INC. |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | President | |||
[Signature Pages to Underwriting Agreement]
| The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives in New York, New York as of the date first above written. |
||||
| XXXXXXXXX & COMPANY, INC. XXXXXXX, XXXXX & CO. XXXXX FARGO SECURITIES, LLC Acting as Representatives of the several Underwriters named in the attached Schedule X. XXXXXXXXX & COMPANY, INC. |
|||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | ||||
| Name: | Xxxxxxx Xxxxxxxxx | ||||
| Title: | Managing Director | ||||
| XXXXXXX, XXXXX & CO. |
|||||
| By: | /s/ Xxxxxxx, Sachs & Co. | ||||
| (Xxxxxxx, Xxxxx & Co.) | |||||
| XXXXX FARGO SECURITIES, LLC |
|||||
| By: | /s/ Xxxxx Xxxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxxx | ||||
| Title: | Managing Director | ||||
[Signature Pages to Underwriting Agreement]
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Notes | ||||
| Underwriters | to be Sold | |||
Xxxxxxxxx & Company, Inc. |
$ | 82,500,000 | ||
Xxxxxxx, Sachs & Co. |
45,000,000 | |||
Xxxxx Fargo Securities, LLC |
22,500,000 | |||
Total |
$ | 150,000,000 | ||
SCHEDULE B
Schedule of Information and Free Writing Prospectuses included in the Time of Sale Prospectus:
Final Term Sheet
SCHEDULE C
None
SCHEDULE D
Guarantors
| 1. | Advantage Diagnostics Corporation | |
| 2. | Alere Health Improvement Company | |
| 3. | Alere Health Systems, Inc. | |
| 4. | Alere Healthcare of Illinois, Inc. | |
| 5. | Alere LLC | |
| 6. | Alere Medical, Inc. | |
| 7. | Alere Wellology, Inc. | |
| 8. | Alere Women’s and Children’s Health, LLC | |
| 9. | Ameditech Inc. | |
| 10. | Applied Biotech, Inc. | |
| 11. | Binax, Inc. | |
| 12. | Biosite Incorporated | |
| 13. | Cholestech Corporation | |
| 14. | First Check Diagnostics Corp. | |
| 15. | First Check Ecom, Inc. | |
| 16. | Hemosense, Inc. | |
| 17. | IM US Holdings, LLC | |
| 18. | Innovacon, Inc. | |
| 19. | Innovations Research, LLC | |
| 20. | Innovative Mobility, LLC | |
| 21. | Instant Technologies, Inc. | |
| 22. | Inverness Medical — Biostar Inc. | |
| 23. | Inverness Medical Innovations North America, Inc. | |
| 24. | Inverness Medical International Holding Corp. | |
| 25. | Inverness Medical International Holding Corp. II | |
| 26. | Inverness Medical, LLC | |
| 27. | Ischemia Technologies, Inc. | |
| 28. | IVC Industries, Inc. | |
| 29. | Matritech, Inc. | |
| 30. | Ostex International, Inc. | |
| 31. | Quality Assured Services, Inc. | |
| 32. | Redwood Toxicology Laboratory, Inc. | |
| 33. | RTL Holdings, Inc. | |
| 34. | Selfcare Technology, Inc. | |
| 35. | Xxxxxxx Laboratories, LLC | |
| 36. | Matria of New York, Inc. | |
| 37. | Alere CDM LLC | |
| 38. | Genecare Medical Genetics Center, Inc. |
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 |
