EXHIBIT 4.8
EXECUTION COPY
$250,000,000 AGGREGATE PRINCIPAL AMOUNT
APOGENT TECHNOLOGIES INC.
2.25% SENIOR CONVERTIBLE CONTINGENT DEBT SECURITIES (CODES) DUE 2021
PURCHASE AGREEMENT
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October 4, 2001
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
ABN AMRO ROTHSCHILD LLC
UBS WARBURG LLC
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Apogent Technologies Inc., a Wisconsin corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
$250,000,000 aggregate principal amount of its 2.25% Senior Convertible
Contingent Debt Securities (the "CODES") due 2021, with the several guarantees
(the "GUARANTEES" and together with the CODES, the "FIRM SECURITIES") of certain
of the Company's subsidiaries parties hereto (the "GUARANTORS") to Xxxxxx
Brothers Inc., Credit Suisse First Boston Corporation, Banc of America
Securities LLC, ABN AMRO Rothschild LLC and UBS Warburg LLC (collectively, the
"INITIAL PURCHASERS"). In addition, the Company proposes to grant to the
Initial Purchasers an option (the "OPTION") to purchase up to an additional
$50,000,000 aggregate principal amount of its 2.25% Senior Convertible
Contingent Debt Securities due 2021 guaranteed by the Guarantors (the "OPTION
SECURITIES" and, together with the Firm Securities, the "SECURITIES"). This is
to confirm the agreement between the Company, the Guarantors and the Initial
Purchasers concerning the offer, issue and sale of the Securities.
The Securities will be issued pursuant to an indenture (the
"INDENTURE") to be dated as of the First Delivery Date (as defined in Section
2(a)), among the Company, the Guarantors and The Bank of New York, as Trustee
(the "TRUSTEE"). The CODES will be convertible into duly and validly
authorized, fully paid and nonassessable shares of common stock, par value $0.01
per share (the "COMMON STOCK"), of the Company (such shares, the "CONVERSION
SHARES") on the terms, and subject to the conditions, set forth in the
Indenture.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission (the
"COMMISSION") thereunder (collectively, the "SECURITIES ACT"), in reliance upon
an exemption therefrom.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a Resale
Registration Rights Agreement, dated as of the First Delivery Date, among the
Company, the Guarantors and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company and the Guarantors will agree to file
with the Commission one or more shelf registration statements pursuant to Rule
415 under the Securities Act (each, a "REGISTRATION STATEMENT") covering the
resale of the Securities and the Conversion Shares, and to use their best
efforts to cause each Registration Statement to be declared effective, in each
case within the time periods specified therein.
This Agreement, the Indenture and the Registration Rights Agreement
are referred to herein collectively as the "TRANSACTION DOCUMENTS".
1. Representations, Warranties and Agreements of the Company and the
Guarantors. Each of the Company and the Guarantors jointly and severally
represents, warrants to and agrees with, the Initial Purchasers that:
(a) The Company and the Guarantors have prepared a preliminary
offering memorandum dated October 3, 2001 (the "PRELIMINARY OFFERING
MEMORANDUM") and will prepare an offering memorandum dated the date hereof
(the "OFFERING MEMORANDUM") setting forth information concerning the
Company, the Guarantors, the Securities, the Common Stock and the
Registration Rights Agreement, in each case, in form and substance
satisfactory to you. Copies of the Preliminary Offering Memorandum have
been, and copies of the Offering Memorandum will be, delivered by the
Company to the Initial Purchasers pursuant to the terms of this Agreement.
As used in this Agreement, "PRELIMINARY OFFERING MEMORANDUM" or "OFFERING
MEMORANDUM" means the Preliminary Memorandum or Offering Memorandum, as the
case may be, including the Incorporated Documents (as described below) as
amended or supplemented. Each of the Preliminary Offering Memorandum and
the Offering Memorandum, will not as of its respective date, and the
Offering Memorandum will not as of any Delivery Date (as defined in Section
2(b)), 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;
provided that, the Company and the Guarantors make no representation or
warranty as to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum in reliance upon and in
conformity with the written information furnished to the Company by or on
the behalf of the Initial Purchasers specifically for inclusion therein.
(b) The documents deemed incorporated by reference in the Offering
Memorandum which are listed under the heading "Incorporation of Certain
Documents by Reference" in the Offering Memorandum (the "INCORPORATED
DOCUMENTS"), when they became effective or were filed with the Commission,
as the case may be, conformed in all
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material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (collectively,
the "EXCHANGE ACT"), and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Offering Memorandum, when such documents are filed with
Commission will conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 6 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers, the offer,
resale and delivery of the Securities by the Initial Purchasers and the
conversion of the Securities into Conversion Shares, in each case in the
manner contemplated by this Agreement, the Indenture, the Registration
Rights Agreement and the Offering Memorandum, to register the Securities or
the Conversion Shares under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "TRUST
INDENTURE ACT").
(d) There is no relationship, direct or indirect, between or among the
Company and the Guarantors, on the one hand, and the directors, executive
officers, shareholders, customers or suppliers of the Company or the
Guarantors, on the other hand, as required to be described under Item 404
of Regulation S-K under the Securities Act.
(e) KPMG LLP (the "ACCOUNTANTS") are independent public accountants
with respect to the Company and its subsidiaries as required by the
Securities Act.
(f) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Offering Memorandum, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree (a "MATERIAL LOSS"), otherwise than as set forth or contemplated
in the Offering Memorandum; and, since such date, there has not been any
change in the capital stock, short-term debt or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Offering Memorandum.
(g) The consolidated financial statements included in the Preliminary
Offering Memorandum and Offering Memorandum (and any amendment or
supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on the
basis stated therein at the respective dates or for the respective periods
to which they apply; such statements and related schedules and notes have
been prepared in accordance
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with generally accepted accounting principles consistently applied
throughout the periods involved; the supporting schedules, if any, included
in the Preliminary Offering Memorandum or the Offering Memorandum present
fairly in accordance with generally accepted accounting principles the
information required to be stated therein; and the other financial and
statistical information and data set forth in the Preliminary Offering
Memorandum and Offering Memorandum (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared
on a basis consistent with such financial statements and the books and
records of the Company.
(h) Each of the Company and its subsidiaries which is a Guarantor or a
"significant subsidiary" within the meaning of Regulation S-X under the
Securities Act, have been duly incorporated, are validly existing as
corporations in good standing under the laws of their respective
jurisdiction of incorporation and have the corporate power and authority to
carry on their respective businesses as described in the Offering
Memorandum and to own, lease and operate their respective properties, and
each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries taken as a whole
(a "MATERIAL ADVERSE EFFECT").
(i) The Company has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization"; all of the
outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; and
the capital stock of the Company conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(j) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, liens, encumbrances, equities, claims or adverse interests of any
nature (each, a "LIEN"), provided that the Company owns an indirect 49%
interest in its joint venture with Kimble Glass, Inc. and owns a 58%
interest in Erie-Watala Glass Company Limited, its joint venture in Hong
Kong.
(k) Each of the Company and the Guarantors has all necessary corporate
power and authority to execute and deliver this Agreement and perform its
obligations hereunder; this Agreement and the transactions contemplated
hereby have been duly authorized by the Company and the Guarantors; when
the Agreement is duly executed and delivered by the Company and the
Guarantors, assuming due authorization, execution and delivery by the
Initial Purchasers, it will be a legally valid and binding agreement of the
Company and the Guarantors.
(l) Each of the Company and the Guarantors has all necessary corporate
power and authority to execute and deliver the Indenture and perform its
obligations thereunder; the Indenture has been duly authorized by the
Company and the Guarantors and, upon the effectiveness of the initial
Registration Statement, will be qualified under the Trust
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Indenture Act; when the Indenture is duly executed and delivered by the
Company and the Guarantors and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, will constitute a legally valid
and binding agreement of the Company and the Guarantors enforceable against
the Company and the Guarantors, in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, subject to general principles of
equity and to limitations on availability of equitable relief, including
specific performance (whether considered in a proceeding in equity or at
law); and the Indenture conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(m) The Company has all necessary corporate power and authority to
execute, issue and deliver the CODES and perform its obligations
thereunder; the CODES have been duly authorized by the Company and when the
CODES are executed, authenticated and issued in accordance with the terms
of the Indenture and delivered to and paid for by the Initial Purchasers
pursuant to this Agreement on the applicable Delivery Date, assuming due
authentication of the CODES by the Trustee, such CODES will constitute
legally valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
subject to general principles of equity and to limitations on availability
of equitable relief, including specific performance (whether considered in
a proceeding in equity or at law); and the CODES will, when issued, conform
in all material respects to the description thereof contained in the
Offering Memorandum.
(n) Each of the guarantors that guarantee the Company's bank credit
facility is a Guarantor of the Securities. Each of the Guarantors has all
necessary corporate power and authority to execute, issue and deliver the
Guarantees and perform its obligations thereunder; the Guarantees have been
duly authorized by each of the Guarantors and when the Guarantees are duly
endorsed on the CODES in accordance with the terms of the Indenture and
delivered to and paid for by the Initial Purchasers pursuant to this
Agreement on the applicable Delivery Date, assuming due authentication of
the CODES by the Trustee, such Guarantees will constitute legally valid and
binding obligations of each of the Guarantors, entitled to the benefits of
the Indenture and enforceable against each of the Guarantors in accordance
with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
subject to general principles of equity and to limitations on availability
of equitable relief, including specific performance (whether considered in
a proceeding in equity or at law).
(o) The Conversion Shares have been duly and validly authorized and
reserved for issuance upon conversion of the Securities and are free of
preemptive rights; and all Conversion Shares, when so issued and delivered
upon such conversion in accordance with the terms of the Indenture, will be
duly and validly authorized and issued, fully paid and nonassessable and
free and clear of any Liens and will conform, when issued, in all material
respects to the descriptions thereof in the Offering Memorandum.
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(p) Each of the Company and the Guarantors has all necessary corporate
power and authority to execute and deliver the Registration Rights
Agreement and perform its obligations thereunder; the Registration Rights
Agreement and the transactions contemplated thereby have been duly
authorized by the Company and the Guarantors and, when the Registration
Rights Agreement is duly executed and delivered by the Company and the
Guarantors, assuming due authorization, execution and delivery by the
Initial Purchasers, it will be a legally valid and binding agreement of the
Company and the Guarantors enforceable against the Company and the
Guarantors, in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, subject to general principles of equity and to
limitations on availability of equitable relief, including specific
performance (whether considered in a proceeding in equity or at law), and
except with respect to the rights of indemnification and contribution
thereunder, where enforcement thereof may be limited by federal or state
securities laws or the policies underlying such laws; and the Registration
Rights Agreement will conform, when executed and delivered, in all material
respects to the description thereof contained in the Offering Memorandum.
(q) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws (or other comparable organizational
documents), (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or
(iii) in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject, except
in the case of (ii) and (iii) for such defaults or violations which would
not, either individually or in the aggregate, have a Material Adverse
Effect.
(r) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
the Company or any of its subsidiaries (or, to the best knowledge of the
Company or the Guarantors, any other entity (including any predecessor) for
whose acts or omissions the Company or any of its subsidiaries is or could
reasonably be expected to be liable) upon any of the property now or
previously owned or leased by the Company or any of its subsidiaries, or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would, under
any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except for any violation or liability that could not reasonably be expected
to have, singularly or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; and there has been no disposal,
discharge, emission or other release of any kind onto such property or into
the environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company or any of its
subsidiaries has any knowledge, except for any such disposal, discharge,
emission or other release of any kind which could not reasonably be
expected to have, singularly or in the aggregate with all such discharges
and other releases, a Material Adverse Effect.
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(s) The Company and each of its subsidiaries owns or possesses
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct
of their respective businesses; and the conduct of their respective
businesses will not conflict in any material respect with, and the Company
and its subsidiaries have not received any notice of any claim of conflict
with any such rights of others which could have a Material Adverse Effect.
(t) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except as do not materially affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
(u) The Company and each of its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company or any of its subsidiaries
have any knowledge of any tax deficiency which, if determined adversely to
the Company or any of its subsidiaries, could reasonably be expected to
have) a Material Adverse Effect.
(v) The execution, delivery and performance of the Transaction
Documents by the Company and the Guarantors, the issuance of the
Securities, the compliance by the Company and the Guarantors with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective properties
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (ii) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property, (iii) result in the
imposition or creation of (or the obligation to create or impose) a Lien
under any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective properties or assets is bound or (iv) result in the
suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of
the rights of the holder of any such Authorization.
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(w) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have a Material
Adverse Effect, and to the best knowledge of the Company or the Guarantors,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(x) No material labor disturbance by or dispute with the employees of
the Company or any of its subsidiaries exists or, to the best knowledge of
the Company is contemplated or threatened.
(y) The Company is not, and upon application of the net proceeds from
the sale of the Securities as set forth in the Offering Memorandum, will
not be, an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "INVESTMENT COMPANY ACT").
(z) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations
thereunder (collectively, "ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder
(collectively, the "INTERNAL REVENUE CODE"); and each "pension plan" for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Internal Revenue Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification.
(aa) Except (i) with respect to the transactions contemplated by the
Registration Rights Agreement, as may be required under the Securities Act
and the Trust Indenture Act and (ii) as required by the state securities or
"blue sky" laws, no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body is required
for the execution, delivery and performance of the Transaction Documents by
the Company, the consummation of the transactions contemplated hereby and
thereby and the issuance of the Securities.
(bb) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Rights Agreement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
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(cc) Except as disclosed in, or contemplated by, the Offering
Memorandum, (i) there are no outstanding securities convertible into or
exchangeable for, or warrants, options or rights issued by the Company
(other than options and other rights issued to employees and directors of
the Company pursuant to plans described in the Offering Memorandum) to
purchase, any shares of the capital stock of the Company, (ii) there are no
statutory, contractual, preemptive or other rights to subscribe for or to
purchase any Common Stock and (iii) there are no restrictions upon transfer
of the Common Stock pursuant to the Company's articles of incorporation or
bylaws.
(dd) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act
or quoted on an automated inter-dealer quotation system.
(ee) None of the Company or any of its Affiliates (as defined in Rule
501(b) of Regulation D), has, directly or through an agent, engaged in any
form of general solicitation or general advertising in connection with the
offering of the Securities or the Conversion Shares (as those terms are
used in Regulation D) under the Securities Act or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act;
and the Company has not entered into any contractual arrangement with
respect to the distribution of the Securities or the Conversion Shares
except for this Agreement and the Registration Rights Agreement, and the
Company will not enter into any such arrangement.
(ff) None of the Company or any of its Affiliates (other than the
Initial Purchasers in connection with the transactions contemplated by this
Agreement about which no representation is made by the Company) has,
directly or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in
the Securities Act) which is or will be integrated with the sale of the
Securities or the Conversion Shares in a manner that would require the
registration under the Securities Act of the Securities or the Conversion
Shares.
(gg) Except as disclosed in the Offering Memorandum, the Company has
not sold or issued any shares of Common Stock, any security convertible
into shares of Common Stock, or any security of the same class as the
Securities during the six-month period preceding the date of the Offering
Memorandum, including any sales pursuant to Rule 144A under, or Regulations
D of the Securities Act ("REGULATION D") or Regulation S of the Securities
Act ("REGULATION S"), other than shares issued pursuant to employee benefit
plans, qualified stock options plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants.
(hh) Neither the Company, nor to its knowledge, any of its Affiliates,
has taken, directly or indirectly, any action designed to cause or result
in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
Securities or Conversion Shares to facilitate the sale or resale of such
Securities.
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(ii) No event has occurred nor has any circumstance arisen which, had
the Securities been issued on such Delivery Date, would constitute a
default or an Event of Default under the Indenture as summarized in the
Offering Memorandum.
(jj) Each certificate signed by any officer of the Company and the
Guarantors and delivered to the Initial Purchasers or counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by
the Company and the Guarantors to the Initial Purchasers as to the matters
covered thereby.
2. Purchase, Sale and Delivery of Securities.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.5% of the
principal amount thereof (the "purchase price") of the Firm Securities set forth
opposite such Initial Purchaser's name in Schedule I hereto.
Delivery of and payment for the Firm Securities shall be made at the
office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 a.m. (New York City time) on October 10, 2001, or such later
date as the Initial Purchasers shall designate, which date and time may be
postponed by agreement between the Initial Purchasers and the Company (such date
and time of delivery and payment for the Firm Securities being herein called the
"FIRST DELIVERY DATE"). Delivery of the Firm Securities shall be made to the
Initial Purchasers against payment of the purchase price by the Initial
Purchasers. Payment for the Firm Securities shall be made against delivery to
the Initial Purchasers of the Firm Securities as described below and effected
either by wire transfer of immediately available funds to an account with a bank
in The City of New York, the account number and the ABA number for such bank to
be provided by the Company to the Initial Purchasers at least two business days
in advance of the First Delivery Date, or by such other manner of payment as may
be agreed by the Company and the Initial Purchasers.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants the
Option to the Initial Purchasers to purchase, severally and not jointly, the
Option Securities at the same purchase price as the Initial Purchasers shall pay
for the Firm Securities and the principal amount of the Option Securities to be
sold to each Initial Purchaser shall be that principal amount which bears the
same ratio to the aggregate principal amount of Option Securities being
purchased as the principal amount of Firm Securities set forth opposite the name
of the Initial Purchaser in Schedule I hereto (or such number increased as set
forth in Section 8). The Option may be exercised in whole or in part at any time
and from time to time and the Company shall deliver such Option Securities not
more than 13 days subsequent to the First Delivery Date upon notice in writing
or by facsimile by Xxxxxx Brothers Inc., on behalf of itself and the other
Initial Purchasers, to the Company setting forth the amount (which shall be an
integral multiple of $1,000 principal amount) of Option Securities as to which
such Option is being exercised.
The date for the delivery of and payment for the Option Securities,
being herein referred to as an "OPTION DELIVERY DATE", which may be the First
Delivery Date (the First
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Delivery Date and the Option Delivery Date, if any, being referred to as a
"DELIVERY DATE"), shall be determined by the Initial Purchasers but shall not be
later than five full business days after written notice of election to purchase
Option Securities is given. Delivery of the Option Securities shall be made to
the Initial Purchasers against payment of the purchase price by the Initial
Purchasers. Payment for the Option Securities shall be made against delivery to
the Initial Purchasers of the Option Securities as described below and effected
either by wire transfer of immediately available funds to an account with a bank
in The City of New York, the account number and the ABA number for such bank to
be provided by the Company to Xxxxxx Brothers Inc. at least two business days in
advance of the Option Delivery Date, or by such other manner of payment as may
be agreed by the Company and the Initial Purchasers.
(c) The Company will deliver against payment of the purchase price the
Securities initially sold to qualified institutional buyers ("QIBS"), as
defined in Rule 144A under the Securities Act ("RULE 144A"), in the form of
one or more permanent global certificates (the "GLOBAL SECURITIES"),
registered in the name of Cede & Co., as nominee for The Depository Trust
Company ("DTC"). Beneficial interests in the Securities initially sold to
QIBs will be shown on, and transfers thereof will be effected only through,
records maintained in book-entry form by DTC and its participants.
The Global Securities will be made available, at the request of any
Initial Purchaser, for checking at least 24 hours prior to such Delivery Date.
The Certificated Securities will be made available, at the request of the
Initial Purchasers, for checking at least 48 hours prior to such Delivery
Date.
(d) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligations of the Initial Purchasers hereunder.
3. Further Agreements of the Company and the Guarantors. The Company
and the Guarantors further agree:
(a) To advise the Initial Purchasers promptly of any proposal to amend
or supplement the Offering Memorandum and not to effect any such amendment
or supplement without the consent of the Initial Purchasers. If, at any
time prior to completion of the resale of the Securities by the Initial
Purchasers, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Offering Memorandum in order
that the Offering Memorandum 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 existing at the
time it is delivered to a purchaser, not misleading, to promptly notify the
Initial Purchasers and prepare, subject to the first sentence of this
Section 3(a), such amendment or supplement as may be necessary to correct
such untrue statement or omission.
(b) To furnish to the Initial Purchasers and to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Initial Purchasers, copies of the Preliminary
Offering Memorandum and the Offering Memorandum (and all amendments and
supplements thereto), in each case, as soon as available and in such
quantities as the Initial Purchasers reasonably request for internal use
11
and for distribution to prospective purchasers; and to furnish to the
Initial Purchasers on the date hereof four copies of the Offering
Memorandum signed by duly authorized officers of the Company, one of which
will include the independent auditors' reports therein manually signed by
such independent auditors. The Company will pay the expenses of printing
and distributing to the Initial Purchasers all such documents.
(c) Promptly from time to time to take such action as the Initial
Purchasers may reasonably request from time to time, to qualify the
Securities for offering and sale under the securities laws of such
jurisdictions as the Initial Purchasers may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions in the United States for as long as may be necessary to
complete the resale of the Securities; provided that in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or otherwise subject itself to taxation in any jurisdiction in
which it is not otherwise so qualified or subject.
(d) For a period of two years following the First Delivery Date, to
furnish to the Initial Purchasers upon request copies of all materials
furnished by the Company to its stockholders and all public reports and all
reports and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act; provided, however, that the
Company shall not be required to provide the Initial Purchasers with any
such reports or similar forms that have been filed with the Commission by
electronic transmission pursuant to XXXXX.
(e) To apply the proceeds from the sale of the Securities as set forth
under "Use of Proceeds" in the Offering Memorandum.
(f) For a period of 90 days from the date hereof, not to directly or
indirectly, (1) announce an offering of any debt securities of the Company
(other than the offering contemplated by this Agreement) or directly or
indirectly, offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected
to, result in the disposition or purchase by any person at any time in the
future of), any debt securities of the Company (other than the Securities),
any shares of Common Stock or any securities convertible into or
exchangeable for Common Stock or substantially similar securities (other
than the Securities, the Conversion Shares and Common Stock to be issued in
the ordinary course (A) under the Company's existing director or employee
benefit plans, qualified stock option plans or other employee compensation
plans existing on the date hereof, (B) pursuant to currently outstanding
options, warrants or rights or (C) under any employee stock purchase plan,
director or employee stock option plan or other employee benefit plan
adopted by the Company after the date hereof, provided that (x) no such
plan becomes effective earlier than January 2002 and (y) no shares of
Common Stock are actually issued pursuant to such plans or pursuant to
options issued under such plans during such 90-day period) or sell or grant
options, warrants or rights with respect to any shares of Common Stock or
securities convertible into or exchangeable for (other than the grant of
options, warrants or rights pursuant to option plans existing on the date
hereof or otherwise permitted as provided above) or (2) enter into any swap
or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such
12
shares of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case without the prior written
consent of Xxxxxx Brothers Inc.; and to cause each executive officer and
director of the Company to furnish to the Initial Purchasers, on or prior
to the First Delivery Date, a letter substantially in the form of Annex A
hereto, pursuant to which each such person shall agree not to, directly or
indirectly, offer for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result
in the disposition or purchase by any person at any time in the future of),
any shares of Common Stock beneficially owned, deemed to be beneficially
owned, or in the future acquired by each such person for a period of 90
days from the date hereof, except as otherwise provided in the letter,
without the prior written consent of Xxxxxx Brothers.
(g) For so long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, to provide
to any holder of the Securities or to any prospective purchaser of the
Securities designated by any holder, upon request of such holder or
prospective purchaser, information required to be provided by Rule
144A(d)(4) of the Securities Act if, at the time of such request, the
Company is not subject to the reporting requirements under Section 13 or
15(d) of the Exchange Act.
(h) To ensure that each of the Securities and the Conversion Shares
will bear, to the extent applicable, the legend contained in the Offering
Memorandum under the caption "Notice to Investors" for the time period and
upon the other terms stated therein, except after the Securities are resold
pursuant to a registration statement effective under the Securities Act.
(i) Except following the effectiveness of any Registration Statement,
not to, and will cause its respective Affiliates not to, solicit any offer
to buy or offer to sell the Securities by means of any form of general
solicitation or general advertising (as those terms are used in Regulation
D under the Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act.
(j) Not to, and will cause its respective Affiliates not to, sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect
of any "security" (as defined in the Securities Act) in a transaction that
could be integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities.
(k) To take such steps as shall be necessary to ensure that neither
the Company nor any of its subsidiaries shall become an "investment
company" within the meaning of such term under the Investment Company Act.
(l) None of the Company or any of its Affiliates will take, directly
or indirectly, any action which is designed to stabilize or manipulate, or
which constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation, of the price of any security of the
Company in connection with the offering of the Securities.
(m) To execute and deliver the Indenture and the Registration Rights
Agreement in form and substance satisfactory to Xxxxxx Brothers Inc.
13
(n) To use its best efforts to cause the Securities to be accepted for
clearance and settlement through the facilities of DTC.
(o) To use its best efforts to assist the Initial Purchasers in
arranging to cause the Securities to be accepted to trade in the PORTAL
market ("PORTAL") of the National Association of Securities Dealers, Inc.
("NASD").
(p) To use its best efforts to have the Conversion Shares approved by
the New York Stock Exchange ("NYSE") for listing prior to the effectiveness
of the initial Registration Statement.
4. Expenses. The Company and the Guarantors agree to pay the following
expenses, whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated (other than pursuant to Section 9):
(a) the costs incident to the authorization, issuance, sale and
delivery of the Securities and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendment or supplement to the Offering Memorandum, all as provided in this
Agreement;
(c) the costs of producing and distributing the Transaction Documents;
(d) the fees and expenses of counsel to the Company and the
Accountants;
(e) the fees and expenses of qualifying the Securities and the
Conversion Shares under the securities laws of the several jurisdictions as
provided in Section 3(c) and of preparing, printing and distributing a U.S.
and Canadian Blue Sky memorandum (including reasonable related fees and
expenses of counsel to the Initial Purchasers);
(f) all costs and expenses incident to the preparation of "road show"
presentation or comparable marketing materials and the road show travelling
expenses of the Company used in connection with the offering of the
Securities;
(g) all fees and expenses incurred in connection with any rating of
the Securities;
(h) the costs of preparing the Securities;
(i) all expenses and fees in connection with the application for
inclusion of the Securities in the PORTAL market and the inclusion of the
Conversion Shares on the NYSE;
(j) the fees and expenses (including fees and disbursements of
counsel) of the Trustee, and the costs and charges of any registrar,
transfer agent, paying agent, or conversion agent under the Indenture; and
14
(k) all other costs and expenses incident to the performance of the
obligations of the Company and the Guarantors under this Agreement;
provided that, except as provided in this Section 4 and in Section 7, the
Initial Purchasers shall pay their own costs and expenses, including the
costs and expenses of their counsel and any transfer taxes on the
Securities which it may sell.
5. Conditions of the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company and the Guarantors contained herein, to the performance by the
Company and the Guarantors of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) No Initial Purchaser shall have discovered and disclosed to the
Company prior to or on such Delivery Date that the Offering Memorandum or
any amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Initial
Purchasers, is material or omits to state any fact which is material and
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of the Transaction Documents, the
Securities, the Conversion Shares and the Offering Memorandum or any
amendment or supplement thereto, and all other legal matters relating to
the Transaction Documents, the Securities, the Conversion Shares and the
transactions contemplated thereby shall be satisfactory in all material
respects to counsel to the Initial Purchasers; and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) Xxxxxxx & Xxxxx LLP shall have furnished to the Initial Purchasers
their written opinion, as counsel to the Company and the Guarantors,
addressed to the Initial Purchasers and dated such Delivery Date, in form
and substance satisfactory to the Initial Purchasers, to the effect that:
(i) Each of the Company and the Guarantors has been duly organized
and is validly existing as a corporation in good standing under the
laws of their respective jurisdictions of incorporation, and is duly
qualified to do business and is in good standing (or equivalent status)
as a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect, and has all corporate power and
authority necessary to own or hold its properties and conduct the
business in which it is engaged;
(ii) The Company has an authorized capitalization as set forth in
the Offering Memorandum, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and conform to the
description thereof contained in the Offering Memorandum in the section
entitled "Description of Capital Stock";
15
(iii) The Conversion Shares that are authorized on the date hereof
have been duly authorized and validly reserved for issuance upon
conversion of the CODES and are free of preemptive rights; and the
Conversion Shares, when so issued and delivered upon such conversion in
accordance with the terms of the Indenture, will be duly and validly
authorized and issued, fully paid and nonassessable, except as provided
in Wisconsin Statutes Section 180.0622(2)(b) as judicially interpreted;
(iv) The statements in the Offering Memorandum under the captions
"Description of the CODES" and "Description of Capital Stock", insofar
as they purport to summarize the provisions of the Indenture, the
Registration Rights Agreement, the Securities and the Common Stock
(including the Conversion Shares) are accurate and complete in all
material respects to the extent required if such statements were
contained in a registration statement on Form S-3 under the Securities
Act;
(v) There are no preemptive or other rights to subscribe for or to
purchase from the Company, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's
articles of incorporation or bylaws, and there are no preemptive or
other rights to subscribe for or to purchase from the Company, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to any agreement or other instrument to which the Company is a
party known to such counsel;
(vi) To the knowledge of such counsel and other than as set forth
in the Offering Memorandum, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to
have a Material Adverse Effect; and, to the best knowledge of such
counsel, no such proceedings are overtly threatened or contemplated by
governmental authorities or threatened by others;
(vii) The execution, delivery and performance of this Agreement,
the Indenture, the Guarantees and the Registration Rights Agreement and
the issuance of the CODES and the Conversion Shares and the
consummation of the transactions contemplated hereby and thereby do not
result in any violation of the provisions of the certificates or
articles of incorporation or bylaws of the Company or any of the
Guarantors or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or the Guarantors or any of their
respective properties or assets; and, except as may be required by the
securities or "blue sky" laws of any state of the United States in
connection with the sale of the Securities, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement and the Indenture by the
Company and the Guarantors and the issuance of the Securities and the
Conversion Shares and the consummation of the transactions contemplated
hereby and thereby;
(viii) No registration of the Securities or the Conversion Shares
under the Securities Act, and no qualification of the Indenture or an
indenture under the Trust
16
Indenture Act, is required in connection with the offer, sale and
delivery of the Securities or in connection with the conversion of the
Securities into Conversion Shares, in each case, in the manner
contemplated by the Offering Memorandum, this Agreement and the
Indenture;
(ix) The statements in the Offering Memorandum under the caption
"Certain United States Federal Income Tax Considerations", insofar as
they purport to constitute summaries of matters of United States
federal income tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters described
therein in all material respects;
(x) The Company is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended;
(xi) Each of the Company and the Guarantors has all necessary
corporate right, power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to perform its
obligations thereunder and to issue, sell and deliver the Securities
and the Conversion Shares to the Initial Purchasers;
(xii) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(xiii) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantors and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a legally valid and binding agreement of the Company and
the Guarantors enforceable against the Company and the Guarantors in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
subject to general principles of equity and to limitations on
availability of equitable relief, including specific performance
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(xiv) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors and, assuming
due authorization, execution and delivery thereof by the Initial
Purchasers, constitutes a valid and legally binding agreement of the
Company and the Guarantors enforceable against the Company and the
Guarantors in accordance with its terms except as rights to indemnity
contained therein may be limited by applicable law and except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, subject to general principles of
equity and to limitations on availability of equitable relief,
including specific performance (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xv) The CODES have been duly authorized by the Company and when
executed, issued and authenticated in accordance with terms of the
Indenture and delivered to and paid for by the Initial Purchasers, will
constitute legally valid and
17
binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, subject to
general principles of equity and to limitations on availability of
equitable relief, including specific performance (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(xvi) The Guarantees have been duly authorized by the Guarantors
and when duly endorsed on the CODES in accordance with terms of the
Indenture and delivered to and paid for by the Initial Purchasers, will
constitute legally valid and binding obligations of the Guarantors,
entitled to the benefits of the Indenture and enforceable against the
Guarantors in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, subject to general principles of equity and to
limitations on availability of equitable relief, including specific
performance (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(xvii) The execution, delivery and performance of this Agreement,
the Indenture, the Guarantees and the Registration Rights Agreement and
the issuance of the Securities and the Conversion Shares and the
consummation of the transactions contemplated hereby and thereby do not
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of the Guarantors is a party or by which
the Company or the Guarantors are bound or to which any of the property
or assets of the Company or the Guarantors are subject.
In rendering such opinion, such counsel may state that its opinion is limited to
matters governed by the federal laws of the United States of America, the laws
of the State of Wisconsin and the Wisconsin Business Corporation Law and may
state that it is relying, in respect of matters of New York law, upon Xxxxxxx
Xxxxxxx & Xxxxxxxx, and in respect of matters of fact, upon certificates of
officers of the Company, provided that such counsel shall state that it believes
that the Initial Purchasers and it are justified in relying upon such
certificates. Such counsel shall also have furnished to the Initial Purchasers
a written statement, addressed to the Initial Purchasers and dated such Delivery
Date, in form and substance satisfactory to the Initial Purchasers, to the
effect that during the course of preparing the Offering Memorandum, such counsel
participated in conferences with officers and other representatives of the
Company, the Company's independent public accountants, the Initial Purchasers
and their counsel, at which the contents of the Offering Memorandum (including
the Incorporated Documents) were discussed, and while such counsel has not
independently verified and is not passing upon the accuracy, completeness or
fairness of the statements made in the Offering Memorandum (including the
Incorporated Documents) except as explicitly set forth above, no facts have come
to the attention of such counsel which lead it to believe that the Offering
Memorandum (including the Incorporated Documents), as of its date or as of such
Delivery Date, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order
18
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need express no belief as to
the financial statements, financial and statistical data and supporting
schedules contained in the Offering Memorandum (or in any Incorporated
Documents).
(d) Xxxxxxx Xxxxxxx & Xxxxxxxx, shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Initial Purchasers,
addressed to the Initial Purchasers and dated such Delivery Date, in form
and substance satisfactory to the Initial Purchasers.
(e) The Initial Purchasers shall have received from the Accountants a
letter (the "initial comfort letter"), in form and substance satisfactory
to the Initial Purchasers, addressed to the Initial Purchasers and dated
the date thereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date not
more than five days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to initial purchasers
in connection with comparable private placements, in form and substance
satisfactory to the Initial Purchasers; and with respect to the Option
Delivery Date, the Company shall have furnished to the Initial Purchasers
the letter (the "bring-down letter") of such accountants, addressed to the
Initial Purchasers and dated such Delivery Date (i) confirming that they
are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Offering
Memorandum, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(f) The Company shall have furnished to the Initial Purchasers on the
applicable Delivery Date a certificate, dated such Delivery Date and
delivered on behalf of the Company by its chief executive officer and its
chief financial officer, in form and substance satisfactory to the Initial
Purchasers, to the effect that:
(i) the representations, warranties and agreements of the Company
and each of the Guarantors in Section 1 are true and correct as of the
date given and as of such Delivery Date; and the Company and the
Guarantors have complied in all material respects with all their
respective agreements contained herein to be performed prior to or on
such Delivery Date and the conditions set forth in Sections 3(f) and
3(m), have been fulfilled;
(ii) since the respective dates as of which information is given in
the Offering Memorandum, other than as set forth in or contemplated by
the Offering
19
Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (A) there has not occurred
any change or any development that might have a Material Adverse
Effect, (B) there has not been any change in the capital stock, the
short-term debt, or the long-term debt of the Company or any of its
subsidiaries that might have a Material Adverse Effect, (C) neither the
Company nor any of its subsidiaries has incurred any material liability
or obligation, direct or contingent and (D) a Material Loss has not
occurred; and
(iii) such officer has carefully examined the Offering Memorandum
and, in such officer's opinion (A) the Offering Memorandum, as of its
date, did not include any untrue statement of a material fact and did
not omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (B) since the date of the Offering Memorandum, no
event has occurred which should have been set forth in a supplement or
amendment to the Offering Memorandum.
(g) The Indenture (in form and substance satisfactory to the Initial
Purchasers) shall have been duly executed and delivered by the Company, the
Guarantors and the Trustee, and the Securities shall have been duly
executed and delivered by the Company and the Guarantors and duly
authenticated by the Trustee.
(h) The Company, the Guarantors and the Initial Purchasers shall have
executed and delivered the Registration Rights Agreement (in form and
substance satisfactory to the Initial Purchasers), and the Registration
Rights Agreement shall be in full force and effect.
(i) The Initial Purchasers shall have received from each executive
officer and director of the Company an executed letter contemplated by
Section 3(f) hereof.
(j) The Company shall have furnished to the Initial Purchasers such
further information, certificates and documents as the Initial Purchasers
may reasonably request to evidence compliance with the conditions set forth
in this Section 5.
(k) The NASD shall have accepted the Securities for trading on PORTAL.
(l) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Offering Memorandum (A) any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum, or (B) since such date there shall
not have been any change in the capital stock, short-term debt or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, prospects, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Offering Memorandum, the effect of
which, in any such case described in clause (A) or (B), is, in the sole
judgment of the Initial Purchasers, so material and adverse as to make it
20
impracticable or inadvisable to proceed with the offering or the delivery
of the Securities being delivered on the applicable Delivery Date on the
terms and in the manner contemplated in the Offering Memorandum and this
Agreement.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
NASDAQ or the over-the-counter market, or trading in any securities of the
Company on any exchange shall have been suspended or minimum prices shall
have been established on any such exchange or market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities or a material disruption in commercial banking
(including the Federal Funds wire transfer system) or securities settlement
or clearance services in the United States, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States, or there shall have been a
declaration of a national emergency or war or the occurrence of any other
calamity or crisis by the United States, or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the sole
judgment of the Initial Purchasers, impracticable or inadvisable to proceed
with the offering or delivery of the Securities being delivered on such
Delivery Date on the terms and in the manner contemplated in the Offering
Memorandum.
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act and (ii) no such
organization shall have notified the Company or publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock, if any.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
to the Initial Purchasers.
6. Representations, Warranties and Agreements of the Initial
Purchasers.
(a) Each Initial Purchaser represents and warrants to, severally and
not jointly, and agrees with the Company that it (i) is purchasing the
Securities pursuant to a private sale exempt from registration under the
Securities Act without the intent to distribute the Securities in violation
of the Securities Act, (ii) will not solicit offers for, or offer or sell,
the Securities by means of any form of general solicitation or general
advertising or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and (iii) will solicit offers for the
Securities only from, and will offer, sell or deliver the Securities, as
part of its initial offering, only to persons whom it reasonably believe to
be QIBs, or, if any such person is buying for one or more institutional
accounts for which such person is acting as fiduciary or agent, only when
such person has represented to it that each
21
such account is a QIB, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, in each case, in
transactions under Rule 144A.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees with respect to offers and sales of Securities outside
the United States that it understands that no action has been or will be
taken in any jurisdiction by the Company that would permit a public
offering of the Securities, or possession or distribution of either the
Preliminary Memorandum or the Offering Memorandum or any other offering or
publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required; and such Initial
Purchaser will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or
has in its possession or distributes either the Preliminary Memorandum or
the Offering Memorandum or any such other material, in all cases at its own
expense.
7. Indemnification and Contribution.
(a) The Company and each of the Guarantors shall indemnify and hold
harmless each Initial Purchaser, its directors, officers and employees and
each person who controls each Initial Purchaser within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which the Initial Purchasers,
director, officer, employee or controlling person may become subject,
insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) any Preliminary Offering Memorandum, the
Offering Memorandum or in any amendment or supplement thereto, (B) any blue
sky application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Securities under the securities laws of any state or other jurisdiction
(such application, document or information being hereinafter called a "BLUE
SKY APPLICATION"), or (C) in the materials or information provided to
investors by, or with the approval of, the Company in connection with the
marketing of the offering of the Securities ("MARKETING MATERIALS"),
including any roadshow or investor presentations made to investors by the
Company (whether in person or electronically), (ii) the omission or alleged
omission to state in the Offering Memorandum or in any amendment or
supplement thereto, or in any Marketing Materials or in any Blue Sky
Application, any material fact necessary to make the statements therein not
misleading or (iii) any act or failure to act or any alleged act or failure
to act by any Initial Purchaser in connection with, or relating in any
manner to, the Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii)
above (provided that the Company and the Guarantors shall not be liable
under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failure
to act undertaken or omitted to be taken by such Initial Purchaser through
its gross negligence or willful misconduct); and shall reimburse each
Initial Purchaser and each such director, officer, employee and controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by that Initial Purchaser, director, officer, employee or
22
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Offering Memorandum or the Offering
Memorandum, or in any such amendment or supplement, in reliance upon and in
conformity with the written information concerning such Initial Purchaser
furnished to the Company by or on behalf of that Initial Purchaser
concerning the Initial Purchasers specifically for inclusion therein which
information consists solely of the information set forth in the letter
referred to in Section 7(e). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the
Initial Purchasers or to any director, officer, employee or controlling
person of the Initial Purchasers.
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless, the Company and the Guarantors, their respective
directors, officers and employees, each of their directors, and each
person, if any, who controls the Company or the Guarantors within the
meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company, the Guarantors or any their respective director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement
thereto, or in any Blue Sky Application, or (ii) the omission or alleged
omission to state in any Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or in any Blue Sky
Application, any material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the written information furnished to
the Company by or on behalf of that Initial Purchaser specifically for
inclusion therein and described in Section 7(e), and shall reimburse the
Company, the Guarantors and any of their respective directors, officers or
controlling persons promptly upon demand for any legal or other expenses
reasonably incurred by the Company, the Guarantors or any of their
respective directors, officers or controlling persons in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Initial Purchaser may otherwise have to the Company, the Guarantors or any
of their respective directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified
23
party otherwise than under this Section 7. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that the Initial Purchasers shall have the right to employ
separate counsel to represent jointly the Initial Purchasers and their
respective directors, officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Initial Purchasers against the Company under
this Section 7 if, in the reasonable judgment the Initial Purchasers it is
advisable for the Initial Purchasers and such directors, officers,
employees and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate counsel
shall be paid by the Company and the Guarantors. No indemnifying party
shall, (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one
hand and the Initial Purchasers on the other from the offering of the
Securities, or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 7(d)(i) but
also the relative fault of the Company and the Guarantors on the one hand
and the Initial Purchasers on the other with respect to the statements or
omissions or alleged statements or alleged omissions that resulted in such
loss, claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one hand and the Initial
Purchasers on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses)
received by the Company and the Guarantors on the
24
one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Securities purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of
the Securities under this Agreement. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, the Guarantors or the
Initial Purchasers, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if the amount of contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 7(d) shall
be deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities resold by it in the initial placement of such
Securities were offered to investors exceeds the amount of any damages
which such Initial Purchaser has otherwise paid or become liable by reason
of any untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Initial Purchasers' obligations to contribute as provided in this Section
7(d) are several in proportion to their respective obligations, not joint.
(e) The Initial Purchasers confirm and the Company acknowledges that
the statements with respect to the offering of the Securities by the
Initial Purchasers set forth in the sixth paragraph, the fourth sentence of
the eighth paragraph and the tenth paragraph under the caption "Plan of
Distribution" in the Offering Memorandum constitute the only information
concerning the Initial Purchasers furnished in writing to the Company by or
on behalf of the Initial Purchasers specifically for inclusion in the
Offering Memorandum. Credit Suisse First Boston Corporation and Banc of
America Securities LLC confirm and the Company acknowledges that the
statements by them set forth in the last paragraph under the caption "Plan
of Distribution" in the Offering Memorandum constitute the only information
concerning them furnished in writing to the Company by them or on their
behalf specifically for inclusion in the Offering Memorandum.
8. Defaulting Initial Purchasers. If, on any Delivery Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Initial Purchasers shall be obligated to
purchase the aggregate principal amount of Securities which the defaulting
Initial Purchaser agreed but failed to purchase on such Delivery Date in the
respective proportions which the total aggregate principal amount of Securities
set opposite the name of each remaining non-defaulting Initial Purchaser in
Schedule I hereto bears to the total aggregate principal amount of Securities
set opposite the names of all the remaining non-defaulting Initial Purchasers in
Schedule I hereto; provided, however, that the remaining non-defaulting Initial
Purchasers shall not be obligated to purchase any Securities on such
25
Delivery Date if the total aggregate principal amount of Securities which the
defaulting Initial Purchasers agreed but failed to purchase on such date exceeds
9.09% of the total aggregate principal amount of Securities to be purchased on
such Delivery Date, and any remaining non-defaulting Initial Purchaser shall not
be obligated to purchase more than 110% of the aggregate principal amount of
Securities which it agreed to purchase on such Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining non-
defaulting Initial Purchasers, or those other purchasers satisfactory to the
Initial Purchasers who so agree, shall have the right, but shall not be
obligated, to purchase on such Delivery Date, in such proportion as may be
agreed upon among them, the total aggregate principal amount of Securities to be
purchased on such Delivery Date. If the remaining Initial Purchasers or other
purchasers satisfactory to the Initial Purchasers do not elect to purchase on
such Delivery Date the aggregate principal amount of Securities which the
defaulting Initial Purchasers agreed but failed to purchase, this Agreement (or
with respect to the Option Delivery Date, the obligation of the Initial
Purchasers to purchase the Option Securities) shall terminate without liability
on the part of any non-defaulting Initial Purchasers and the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 4 and 10. As used in this Agreement, the term
"INITIAL PURCHASER" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule I hereto who,
pursuant to this Section 8, purchases Securities which a defaulting Initial
Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Company for damages caused by its default.
If other purchasers are obligated or agree to purchase the Securities of a
defaulting or withdrawing Initial Purchaser, either the remaining non-defaulting
Initial Purchasers or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes in the Offering Memorandum or
in any other document or arrangement that, in the opinion of counsel to the
Company or counsel to the Initial Purchasers, may be necessary.
9. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers by notice given to and received by
the Company prior to delivery of and payment for the Securities if, prior to
that time, any of the events described in Sections 5(l), 5(m) or 5(n) shall have
occurred or if the Initial Purchasers shall decline to purchase the Firm
Securities for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If (a) the
Company and the Guarantors shall fail to tender the Securities for delivery to
the Initial Purchasers for reason of any failure, refusal or inability on the
part of the Company and the Guarantor to perform any agreement on their part to
be performed, or because any other condition of the Initial Purchasers'
obligations hereunder required to be fulfilled by the Company and the Guarantor
(including, without limitation, with respect to the transactions) is not
fulfilled or (b) the Initial Purchasers shall decline to purchase the Securities
for any reason permitted under this Agreement (including the termination of this
Agreement pursuant to Section 9), the Company and the Guarantors shall reimburse
the Initial Purchasers for the reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses including reasonable fees and
disbursements incurred by them in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company and the
Guarantors shall pay the full amount thereof to the Initial
26
Purchasers. If this Agreement is terminated pursuant to Section 8 by reason of
the default of one or more Initial Purchasers, the Company shall not be
obligated to reimburse any defaulting Initial Purchasers on account of those
expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx, 00000, Attention: Syndicate Department (Fax: 201-
000-0000); with a copy, in the case of any notice pursuant to Section 8(c),
to the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx, 00000; and
with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, Esq. (Fax: (000-000-0000;
Telephone (000) 000-0000);
(b) if to the Company or to any of the Guarantors, shall be delivered
or sent by mail, telex or facsimile transmission to it at Apogent
Technologies Inc., 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000,
Attention: Xxxxxxx Xxxxxxx, Esq. (Fax: (000) 000-0000; Telephone:
(000) 000-0000, ext 700); with a copy to Xxxxxxx & Xxxxx LLP, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx,
Esq. (Fax:(000) 000-0000, Telephone: (000) 000-0000);
provided, however, that any notice to an Initial Purchaser pursuant to Section
7(c) shall be delivered or sent by mail, telex or facsimile transmission to each
such Initial Purchaser, which address will be supplied to any other party hereto
by Xxxxxx Brothers upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by Xxxxxx Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
the Guarantors and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
and the Guarantors contained in this Agreement shall also be deemed to be for
the benefit of the directors, officers and employees of the Initial Purchasers
and the person or persons, if any, who control the Initial Purchasers within the
meaning of Section 15 of the Securities Act and (B) any indemnity agreement of
the Initial Purchasers contained in Section 7(b) of this Agreement shall be
deemed to be for the benefit of directors, officers and employees of the Company
and the Guarantors, and any person controlling the Company and the Guarantors
within the meaning of Section 15 of the Securities Act. Nothing contained in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 12, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
27
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Guarantors and the Initial Purchasers
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any of them or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Significant
Subsidiary" . For purposes of this Agreement, (a) "BUSINESS DAY" means any day
on which the New York Stock Exchange, Inc. is open for trading and (b)
"SIGNIFICANT SUBSIDIARY" has the meaning assigned to it under Rule 405 of the
Securities Act.
15. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
16. Consent to Jurisdiction; Forum Selection; Waiver of Jury Trial.
(a) Each of the Company, the Guarantors and the Initial Purchasers
hereby submits to the jurisdiction of the courts of the State of New York
and the courts of the United States of America located in the State of New
York over any suit, action or proceeding with respect to this Agreement or
the transactions contemplated hereby.
(b) Any suit, action or proceeding with respect to this Agreement or
the transactions contemplated hereby may be brought only in the courts of
the State of New York or the courts of the United States of America located
in the State of New York, in each case, located in the Borough of
Manhattan, City of New York, State of New York. Each of the parties hereto
waives any objection that it may have to the venue of such suit, action or
proceeding in any such court or that such suit, action or proceeding in
such court was brought in an inconvenient court and agrees not to plead or
claim the same.
(c) Any right to trial by jury with respect to any lawsuit, claim,
action or other proceeding arising out of or relating to this Agreement or
the services to be rendered by you hereunder is expressly and irrevocably
waived.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing correctly sets forth the agreement between the
Company, the Guarantors and the Initial Purchasers, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
Apogent Technologies Inc.
By: _______________________________
Name:
Title:
29
APOGENT FINANCE COMPANY
APPLIED BIOTECH, INC.
BARNSTEAD THERMOLYNE CORPORATION
BIOROBOTICS INC.
CHASE SCIENTIFIC GLASS, INC.
CONSOLIDATED TECHNOLOGIES, INC.
ERIE SCIENTIFIC COMPANY
ERIE SCIENTIFIC COMPANY OF PUERT RICO
ERIE UK HOLDING COMPANY
EVER READY THERMOMETER CO., INC.
GENEVAC INC.
G&P LABWARE HOLDINGS INC.
LAB-LINE INSTRUMENTS, INC.
LAB VISION CORPORATION
MATRIX TECHNOLOGIES CORPORATION
MICROGENICS CORPORATION
MOLECULAR BIOPRODUCTS, INC.
NALGE NUNC INTERNATIONAL CORPORATION
NATIONAL SCIENTIFIC COMPANY
THE NAUGATUCK GLASS COMPANY
NERL DIAGNOSTICS CORPORATION
OWL SEPARATION SYSTEMS, INC.
REMEL INC.
XXXXXXX-XXXXX SCIENTIFIC COMPANY
XXXXXXX SCIENTIFIC CORPORATION
SAMCO SCIENTIFIC CORPORATION
SYBRON TRANSITION CORP.
VACUUM PROCESS TECHNOLOGY, INC.
By ____________________________
Name:
Title:
30
Accepted and agreed by:
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
ABN AMRO ROTHSCHILD LLC
UBS WARBURG LLC
By XXXXXX BROTHERS INC.
By:_______________________________
Authorized Representative
31
SCHEDULE I
AGGREGATE PRINCIPAL
AMOUNT OF FIRM
INITIAL PURCHASERS SECURITIES
------------------ --------------------
Xxxxxx Brothers Inc.................................... $102,850,000
Credit Suisse First Boston Corporation................. $102,850,000
Banc of America Securities LLC......................... $ 36,300,000
ABN AMRO Rothschild LLC................................ $ 4,000,000
UBS Warburg LLC........................................ $ 4,000,000
------------
Total.............................................. $250,000,000
============
32
ANNEX A
LOCK-UP LETTER AGREEMENT
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
ABN AMRO ROTHSCHILD LLC
UBS WARBURG LLC
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into a Purchase
Agreement (the "Purchase Agreement") providing for the purchase by you (the
"Initial Purchasers") of 2.25% Senior Convertible Contingent Debt Securities
(the "CODES") due 2021 of Apogent Technologies, Inc., a Wisconsin corporation
(the "Company"), which are convertible into fully paid, nonassessable shares of
common stock of the Company, par value $0.01 per share (the "Common Stock"), and
that the Initial Purchasers propose to reoffer the CODES (the "Offering").
In consideration of the execution of the Purchase Agreement by the Initial
Purchasers, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., the undersigned will not, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any debt securities of the Company
(other than the CODES), shares of Common Stock or securities convertible into or
exchangeable for Common Stock, or sell or grant options, rights or warrants with
respect to any debt securities, shares of Common Stock or securities convertible
into or exchangeable for Common Stock, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such securities, such shares of
Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of 90 days after the date of the final Offering
Memorandum relating to the Offering, but in no event shall the period of
restriction be effective beyond January 25, 2002.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
33
Notwithstanding the foregoing, the undersigned may transfer Common Stock or
securities convertible into or exchangeable for Common Stock, including options
therefore (collectively, the "Shares") (1) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by
restrictions set forth herein, or (2) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for.
The undersigned understands that the Company and the Initial Purchasers
will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to a
Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Initial Purchasers.
It is understood that, if the Company notifies you that it does not intend
to proceed with the Offering, if the Purchase Agreement does not become
effective, or if the Purchase Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and
delivery of the CODES, we will be released from our obligations under this Lock-
Up Letter Agreement.
This Agreement shall be governed by, and construed in accordance with, the
laws of New York.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
Very truly yours,
Dated: _______________
34
