EXHIBIT 4.5
EXECUTION COPY
$150,000,000
SYBRON DENTAL SPECIALTIES, INC.
8.125% SENIOR SUBORDINATED NOTES DUE 2012
AMENDED AND RESTATED PURCHASE AGREEMENT
Dated as of May 22, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XXXXXXX, SACHS & CO.
XXXXXX X. XXXXX & CO. INCORPORATED
CREDIT LYONNAIS SECURITIES (USA) INC
FLEET SECURITIES, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC,
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. This Amended and Restated Purchase Agreement amends
and restates in its entirety the Purchase Agreement dated May 22, 2002 between
Sybron Dental Specialties, Inc. and the several initial purchasers named
therein. Sybron Dental Specialties, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named on Schedule A hereto (the
"Purchasers") $150,000,000 principal amount of its 8.125% Senior Subordinated
Notes Due 2012 ("OFFERED SECURITIES"). The Offered Securities are to be issued
under an indenture (the "INDENTURE"), between the Company, the Subsidiary
Guarantors (as defined below) and Wilmington Trust Company, or such other
trustee acceptable to the Company and the Initial Purchasers, as Trustee on a
private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "SECURITIES ACT"). The Offered
Securities will be guaranteed (the "SUBSIDIARY GUARANTEE") by each of the
entities listed on Schedule B hereto (each a "SUBSIDIARY GUARANTOR" and
collectively the "SUBSIDIARY GUARANTORS"). The Company and the Subsidiary
Guarantors hereby agree with the several Purchasers as follows:
Holders (including subsequent transferees) of the Offered Securities
will have the registration rights set forth in the registration rights agreement
(the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date (as defined
below), in substantially the form of Exhibit I hereto, for so long as such
Offered Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the Subsidiary Guarantors will agree to file with the
Securities and Exchange Commission (the "COMMISSION") under the circumstances
set forth therein, (i) a registration statement under the Securities Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") relating to the Company's 8.125% Senior
Subordinated Notes in a like aggregate principal amount as the Company issued
under the Indenture, identical in all material respects to the Offered
Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"),
to be offered in exchange for the Offered Securities (such offer to exchange
being referred to as the "EXCHANGE OFFER") and the Subsidiary Guarantees thereof
and (ii) if required by the terms of the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Offered Securities
and to use their best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. The Offered
Securities and the Exchange Securities are referred to collectively as the
"SECURITIES".
2. Representations and Warranties of the Company and Subsidiary
Guarantors. Each of the Company and the Subsidiary Guarantors represents and
warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities has been prepared by the Company and
the Subsidiary Guarantors. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, together
with the documents listed on Schedule C hereto and any other document
approved by the Company for use in connection with the contemplated
resale of the Offered Securities, are hereinafter collectively referred
to as the "OFFERING DOCUMENT". On the date of this Agreement, the
Offering Document does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser through
Credit Suisse First Boston Corporation ("CSFBC") specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof. Except as disclosed
in the Offering Document, on the date of this Agreement, the Company's
Annual Report on Form 10-K most recently filed with the Commission and
all subsequent reports (collectively, the "EXCHANGE ACT REPORTS") which
have been filed by the Company with the Commission or sent to
shareholders pursuant to the Securities Exchange Act of 1934 (the
"EXCHANGE ACT") do not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Offering Document and the Indenture and such
Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(c) On the Closing Date, the Exchange Securities will have
been duly authorized by the Company and the Subsidiary Guarantors; and
when the Exchange Securities are issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Exchange Securities will be entitled to the benefits of the Indenture
and will be the valid and legally binding obligations of the Company
and the Subsidiary Guarantors, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(d) The Subsidiary Guarantee has been duly authorized by
such Subsidiary Guarantor, and has been duly executed and delivered by
each such Subsidiary Guarantor and conforms to the description thereof
contained in the Offering Document. When the Offered Securities have
been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Purchasers in accordance
with the terms of this Agreement, the Subsidiary Guarantee of each
Subsidiary Guarantor will constitute valid and legally binding
obligations of such Subsidiary Guarantor, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) The Subsidiary Guarantee has been duly authorized by such
Subsidiary Guarantor; and, when issued, will have been duly executed
and delivered by each such Subsidiary Guarantor and will conform to the
description thereof contained in the Offering Document. When the
Exchange Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Guarantee of each Subsidiary Guarantor will constitute valid
and legally binding obligations of such Subsidiary Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT");
(g) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA" or "Trust Indenture Act"), and the rules
and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(h) The entities listed on Schedule D hereto are the only
subsidiaries, direct or indirect, of the Company.
(i) Each significant subsidiary (as such term is defined in
Rule 1-02(w) of Regulation S-X under the Act) of the Company
("SIGNIFICANT SUBSIDIARY") has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, except for liens thereon created pursuant to the Credit
Agreement dated as of November 28, 2000, as amended, among the Company,
certain of its subsidiaries, ABN AMRO N.V. and the other lenders party
thereto and, upon the termination of such Credit Agreement, liens
created pursuant to the credit facility to be dated on or before the
Closing Date among the Company, the other borrowers party thereto, the
guarantors party thereto, the lenders party thereto, Credit Suisse
First Boston, as administrative agent and arranger, and the syndication
agent and documentation agents, named therein (the "New Credit
Facility").
(j) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder's fee or other like
payment.
(k) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
and the Registration Rights Agreement in connection with the issuance
and sale of the
Offered Securities by the Company, except for the order of the
Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement effective.
(l) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement, and the issuance
and sale of the Offered Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(m) This Agreement has been duly authorized, executed and
delivered by the Company.
(n) The Registration Rights Agreement has been duly authorized
by the Company and each of the Subsidiary Guarantors and, on the
Closing Date, will have been duly executed and delivered by the Company
and each of the Subsidiary Guarantors. When the Registration Rights
Agreement has been duly executed and delivered, the Registration Rights
Agreement will be a valid and binding agreement of the Company and each
of the Subsidiary Guarantors, enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. On the Closing
Date, the Registration Rights Agreement will conform as to legal
matters to the description thereof in the Offering Circular.
(o) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, 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 property is bound.
(p) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any material leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them. The Company has no material manufacturing,
distribution or other facilities in any state of the U.S. other than
the State of California.
(q) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(r) There are no contracts, agreements or understandings
between the Company or any Subsidiary Guarantor and any person granting
such person the right to require the Company or such Subsidiary
Guarantor to file a registration statement under the Securities Act
with respect to any securities of the Company or such Subsidiary
Guarantor or to require the Company or such Subsidiary Guarantor to
include such securities with the Securities and Subsidiary Guarantees
registered pursuant to any Registration Statement.
(s) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve
System.
(t) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would have a Material Adverse Effect.
(u) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
have, individually or in the aggregate, a Material Adverse Effect.
(v) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(w) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or the Registration
Rights Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings have been threatened to the Company or, to the Company's
knowledge, contemplated.
(x) The financial statements included in the Offering Document
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis and the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma data reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(y) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(z) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(aa) None of the Company or any Subsidiary Guarantor is an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940 (the
"INVESTMENT COMPANY ACT"); and none of the Company or any Subsidiary
Guarantor is and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(bb) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(cc) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
or any Subsidiary Guarantor that it is considering imposing) any
condition (financial or otherwise) on the Company's or any Subsidiary
Guarantor's retaining any rating assigned to the Company or any
Subsidiary Guarantor, any securities of the Company or any Subsidiary
Guarantor or (ii) has indicated to the Company or any Subsidiary
Guarantor that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (b) any negative change in the outlook for any rating of
the Company, any Subsidiary Guarantor or any securities of the Company
or any Subsidiary Guarantor.
(dd) No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the
Company, the Subsidiary Guarantors or any of their respective
representatives (other than the Purchasers, as to whom the Company and
the Subsidiary Guarantors make no representation) in connection with
the offer and sale of the Offered Securities contemplated hereby,
including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Offered Securities
have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(ee) None of the Company, the Subsidiary Guarantors nor any of
their respective affiliates or any person acting on its or their behalf
(other than the Purchasers, as to whom the Company and the Subsidiary
Guarantors make no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S under the
Securities Act ("REGULATION S") with respect to the Offered Securities
or the Subsidiary Guarantees.
(ff) The sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions
of the Securities Act.
(gg) No registration under the Securities Act of the Offered
Securities or the Subsidiary Guarantees is required for the sale of the
Offered Securities and the Subsidiary Guarantees to the Purchasers as
contemplated hereby or for the Exempt Resales (as defined below) in
each case assuming the accuracy of the Purchasers' representations set
forth in Section 4 hereof.
(hh) Assuming the accuracy of the Purchaser's representations
set forth in Section 4 hereof, it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees
to sell to the Purchasers, and the Purchasers agree, severally and not jointly,
to purchase from the Company, at a purchase price of 97% of the principal amount
thereof plus accrued interest from June 6, 2002 to the Closing Date (as
hereinafter defined) the respective principal amounts set forth opposite the
names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of Sybron Dental Specialties, Inc. at the office of
Xxxxx Xxxx & Xxxxxxxx at 10:00 A.M. (New York time), on June 6, 2002, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "CLOSING DATE",
against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Global Securities will be made
available for checking at the above offices of Xxxxx Xxxx & Xxxxxxxx at least 24
hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities and
will offer and sell the Offered Securities (i) as part of their distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 144A ("RULE
144A") or Rule 903 under the Securities Act (the "EXEMPT RESALES"). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered Securities,
other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for any such arrangements
with the other Purchasers or affiliates of the other Purchasers or with the
prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
has not offered or sold and will not offer or sell the Offered Securities by
means of any form of general solicitation or general advertising, within
the meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over television or radio,
or (ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each Purchaser severally agrees that it and each of its affiliates
has not offered or sold and prior to the expiry of a period of six months from
the Closing Date, will not offer or sell any Offered Securities to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Xxx 0000 (the "FSMA")) in connection with the issue or sale of any Offered
Securities in circumstances in which section 21(1) of the FSMA does not apply to
the Company or the Subsidiary Guarantors; and it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Offered Securities in, from or otherwise involving the United
Kingdom.
5. Certain Agreements of the Company and the Subsidiary Guarantors.
Each of the Company and the Subsidiary Guarantors, jointly and severally, agree
with the several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which will not be
unreasonably withheld. If, at any time prior to the completion of the
resale of the Offered Securities by the Purchasers any event occurs as
a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, the Company promptly will notify CSFBC of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither CSFBC's consent
to, nor the Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC requests, and the Company will furnish
to CSFBC on the date hereof three copies of the Offering Document
signed by a duly authorized officer of the Company, one of which will
include the independent accountants' reports therein manually signed by
such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request,
to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. The Company
will pay the expenses of printing and distributing to the Purchasers
all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such states in the United States as
CSFBC designates and will continue such qualifications in effect so
long as required for the resale of
the Offered Securities by the Purchasers provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Securities.
(e) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(f) During the period of two years after the Closing Date,
none of the Company or any Subsidiary Guarantor will be or become, an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement and the Indenture
and the Registration Rights Agreement including (i) the fees and
expenses of Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities, the preparation and printing of this Agreement,
the Registration Rights Agreement, the Offered Securities, the
Indenture, the Offering Document and amendments and supplements
thereto, and any other document relating to the issuance, offer, sale
and delivery of the Offered Securities and as applicable the Exchange
Securities; (iii) the cost of qualifying the Offered Securities for
trading in The Portal(SM) Market ("PORTAL") of The Nasdaq Stock Market,
Inc. and any expenses incidental thereto, (iv) the cost of any
advertising approved by the Company in connection with the issue of the
Offered Securities, (v) any expenses (including fees and disbursements
of counsel) incurred in connection with qualification of the Offered
Securities or the Exchange Securities for sale under the laws of such
jurisdictions (in the United States) as CSFBC designates and the
printing of memoranda relating thereto, (vi) any fees charged by
investment rating agencies for the rating of the Offered Securities or
the Exchange Securities, and (vii) expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Company will
also pay or reimburse the Purchasers for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(h) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither
the Company nor any of its affiliates will make bids or purchases for
the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(i) For a period of 90 days after the date of the initial
offering of the Offered Securities by the Purchasers, the Company will
not offer, sell, contract to sell, pledge, or otherwise dispose of,
directly or indirectly, any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, without the prior written
consent of CSFBC, which shall not be unreasonably withheld. The Company
will not at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offer and sale of the Offered Securities to the
Purchasers.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Subsidiary Guarantors herein, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of KPMG LLP confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("RULES
AND REGULATIONS") and to the effect that:
(i) In their opinion the financial statements examined by
them and included in the Offering Document and in the Exchange
Act Reports comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Document and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in
the Offering Document or in the Exchange Act Reports do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act
and the related published Rules and Regulations or that
any material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified
date not more than three business days prior to the date
of this Agreement, there was any change in the capital
stock or any increase in short-term indebtedness or
long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net assets, as compared with
amounts shown on the latest balance sheet included in the
Offering Document; or
(C) for the period from the closing date of the
latest income statement included in the Offering Document
to the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period of
the previous year and with the period of corresponding
length ended the date of the latest income statement
included in the Offering Document, in consolidated net
sales, net operating income consolidated income before
extraordinary items or net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (in each case to the extent that such
dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers, including CSFBC
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers, including CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in the
United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Purchasers, including CSFBC, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx LLP, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business in the Offering
Document; and the Company is duly qualified to do business as
a foreign corporation in good standing in the State of
California;
(ii) The Indenture has been duly authorized by all
necessary corporate action and has been duly executed and
delivered by the Company; the Offered Securities have been
duly authorized by all necessary corporate action and have
been duly executed, issued and delivered by the Company; the
Offered Securities conform in all material respects to the
description thereof contained in the Offering Document; and
the Indenture (when duly executed and delivered by the
Trustee) and the Offered Securities (when they are duly
authenticated by the Trustee) constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) The Indenture conforms in all material respects
to the requirements of the Trust Indenture Act and the rules
and regulations of the Commission applicable to an indenture
which is qualified thereunder;
(iv) The Exchange Securities have been duly
authorized by all necessary corporate action by the Company;
and when the Exchange Securities are executed, authenticated,
issued and delivered in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange Securities will
be entitled to the benefits of the Indenture and will be the
valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(v) None of the Company or any Subsidiary Guarantor
is and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) Each Subsidiary Guarantee has been duly
authorized by such Subsidiary Guarantor, and has been duly
executed and delivered by such Subsidiary Guarantor and
conforms to the description thereof contained in the Offering
Document. When the Offered Securities have been issued,
executed and authenticated in accordance with the Indenture
and delivered to and paid for by the Purchasers in accordance
with the terms of this Agreement, the Subsidiary Guarantee of
each Subsidiary Guarantor will constitute valid and legally
binding obligations of such Subsidiary Guarantor, enforceable
in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(viii) When the Exchange Securities have been issued,
executed, authenticated and exchanged in accordance with the
terms of the Exchange Offer and the Indenture, the Subsidiary
Guarantee of each Subsidiary Guarantor will constitute valid
and legally binding obligations of such Subsidiary Guarantor,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(ix) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of
the Subsidiary Guarantors, and is a valid and binding
agreement of the Company and each of the Subsidiary
Guarantors, enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms, subject to
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles, and (ii) limitations on
enforceability of indemnity and contribution claims under
applicable securities laws and public policy relating thereto;
(x) No registration under the Securities Act of the
Offered Securities or the Subsidiary Guarantees is required
for the sale of the Offered Securities and the Subsidiary
Guarantees to the Purchasers as contemplated hereby or for the
Exempt Resales, in each case assuming the accuracy of the
Purchasers' representations set forth in Section 4 hereof;
(xii) The statements under the caption "Description
of Notes" in the Offering Circular are accurate in all
material respects and fairly present the information required
to be shown; nothing has come to the attention of such counsel
that caused such counsel to believe that the Offering
Circular, or any amendment or supplement thereto, or any
Exchange Act Report, as of the date hereof and as of the
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make
the statements therein not misleading; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the Offering
Circular and the Exchange Act Reports.
For purposes of rendering the opinion in the
foregoing clauses (ii), (iv), (vii), (viii) and (ix) to the
effect that the respective agreements and instruments
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their respective terms, such counsel may assume that
notwithstanding the choice of law clause to the contrary, the
applicable governing law is the internal law of the state of
Wisconsin, without regard to conflicts of law principles.
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxx X. Xxxxxxx, General Counsel of the Company,
that:
(i) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except such as may be
required under state securities laws, except for the order of
the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement effective;
(ii) The execution, delivery and performance of the
Indenture, this Agreement, and the Registration Rights
Agreement and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(iii) Except as disclosed in the Offering Circular,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties: (x) that, if determined adversely to
the Company or any of its subsidiaries, would materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement or the Registration Rights
Agreement, and, to such counsel's knowledge, no such actions,
suits or proceedings are threatened or contemplated or (y) in
respect of which such counsel believes there is a reasonable
possibility of an adverse outcome which would, individually or
in the aggregate, have a Material Adverse Effect or are
otherwise material in the context of the sale of the Offered
Securities;
(iv) The descriptions in the Offering Circular under
the caption "Business -- Patents, Trademarks and licenses";
"Business -- Regulation"; "Business -- Transactions and
Agreements between Apogent and Sybron Dental"; "Business --
Legal Proceedings"; "Description of the New Credit Facility"
and "Description of Notes" are accurate and fairly present the
information required to be shown; such counsel has no reason
to believe that the Offering Circular, or any amendment or
supplement thereto, or any Exchange Act Report, as of the date
hereof and as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary to make the statements therein not misleading;
it being understood that such counsel need express no opinion
as to the financial statements or other financial data
contained in the Offering Circular and the Exchange Act
Reports.
(e) The Purchasers shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Purchasers, such customary opinion or
opinions, dated the Closing Date, with respect to the validity of the
Offered Securities, the Offering Circular, the exemption from
registration for the offer and sale of the Offered Securities by the
Company to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFBC
may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the dates of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Offering
Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, of KPMG LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(h) (i) Each material condition to the closing of the New
Credit Facility shall have been satisfied (or, with the consent of the
Purchasers, waived in accordance with the terms of the New Credit
Facility), (ii) at the Closing Date, no event of default or event that,
with the giving of notice or lapse of time, or both, would constitute
an event of default under the New Credit Facility shall have occurred
and be continuing, and (iii) the closing under the New Credit Facility
shall have been consummated, and the Purchasers shall have received
evidence reasonably satisfactory to them of such closing.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular or Exchange Act Reports, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure to
perform its obligations under Section 5(a) of this Agreement, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document furnished on behalf of each Purchaser: the third
paragraph, the ninth paragraph (third and fourth sentences only), the tenth
paragraph and eleventh paragraph under the caption "Plan of Distribution";
provided however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes (i) an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
discounts, fees and commissions received by such Purchaser exceeds the amount of
any damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Securities, CSFBC may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Purchasers, but if no such arrangements are made by the Closing Date,
the non-defaulting Purchasers shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Offered Securities and arrangements
satisfactory to CSFBC and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 0000 Xxxx Xxxxxxx Xxx., Xxxxxx, XX 00000, Attention: General Counsel;
provided, however, that any notice to a Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the
agreements for their benefit contained in the second and third sentences of
Section 5(b) hereof against the Company as if such holders were parties hereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you jointly or by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Purchasers in accordance with its terms.
Very truly yours,
SYBRON DENTAL SPECIALTIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, General Counsel
and Secretary
SYBRON DENTAL MANAGEMENT, INC.
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
LRS ACQUISITION CORP.
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
ORMCO CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXXXXX ORTHODONTIC APPLIANCES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
XXXX CORPORATION
By /s/ Xxxxxx Dunkerken
Name: Xxxxxx Dunkerken
Title: Treasurer
METREX RESEARCH CORPORATION
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Secretary
SYBRON CANADA HOLDINGS, INC.
By /s/ Xxxxxx Dunkerken
Name: Xxxxxx Dunkerken
Title: Treasurer
PINNACLE PRODUCTS, INC.
By /s/ Xxxxxx Dunkerken
Name: Xxxxxx Dunkerken
Title: Treasurer
The foregoing Purchase Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & CO.
XXXXXX X. XXXXX & CO. INCORPORATED
CREDIT LYONNAIS SECURITIES (USA) INC
Acting on behalf of themselves and as the Representatives of the
several Purchasers.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
SCHEDULE A
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
------------------
PURCHASER
---------
Credit Suisse First Boston Corporation.................................. $61,250,000
Xxxxxx Brothers Inc..................................................... $50,000,000
Xxxxxxx, Sachs & Co..................................................... $12,500,000
Xxxxxx X. Xxxxx & Co. Incorporated...................................... $6,250,000
Credit Lyonnais Securities (USA) Inc.................................... $6,666,667
Fleet Securities, Inc. ................................................. $6,666,667
Tokyo-Mitsubishi International plc ..................................... $6,666,666
------------
Total........................................ $150,000,000
============
SCHEDULE B
GUARANTORS OF THE SECURITIES
Subsidiary Jurisdiction
---------- ------------
Sybron Dental Management, Inc. Delaware
LRS Acquisition Corp. Delaware
Ormco Corporation Delaware
Xxxxxxx Orthodontic Appliances, Inc. Wisconsin
Xxxx Corporation Delaware
Metrex Research Corporation Wisconsin
Sybron Canada Holdings, Inc. Delaware
Pinnacle Products, Inc. Wisconsin
SCHEDULE C
None
SCHEDULE D
DIRECT AND INDIRECT SUBSIDIARIES OF SYBRON DENTAL SPECIALTIES, INC.
Subsidiary Jurisdiction
---------- ------------
Sybron Dental Management, Inc. Delaware
LRS Acquisition Corp. Delaware
Ormco Corporation Delaware
Xxxxxxx Orthodontic Appliances, Inc. Wisconsin
Maquiladora Aci-Mex, S.A. de C.V. Mexico
Ormco B.V. The Netherlands
Ormco Europe B.V. The Netherlands
Ormco de Mexico, S.A. de C.V. Mexico
Ormco (Europe) AG Switzerland
Ormco GmbH Germany
Ormco Pty. Limited Australia
Ormex S.A. de C.V. Mexico
Socodent S.A. France
Xxxx International France
Ormodent Belgique, S.A. Belgium
Ormodent L.D.A. Portugal
Ormodent S.A. France
SDS de Mexico, S.A. de C.V. Mexico
Xxxx Corporation Delaware
Xxxx Australia Pty. Limited New South Wales
Xxxx (Europe) A.G. Switzerland
Xxxx GmbH Germany
Xxxx Italia S.p.A. Italy
Metrex Research Corporation Wisconsin
Sybron Dental Specialties Japan, Inc. Japan
Sybron Canada Limited Canada
Sybron Canada Holdings, Inc. Delaware
Sybron Canada Limited Partner Company Nova Scotia
Sybron Canada General Partner Company Nova Scotia
Sybron Canada Funding Limited Partnership Nova Scotia
Xxxx Neos Holding Company SA Switzerland
Xxxx Neos Dental SA Switzerland
Indentoflex AG Switzerland
Xxxx U.K. Limited England
Analytic Endodontics U.K. Ltd. England
Pinnacle Products, Inc. Wisconsin
