$75,000,000 IMPAX LABORATORIES, INC. 3.50% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2012 PURCHASE AGREEMENT

 

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                                                                     EXHIBIT 4.1

 

                                   $75,000,000

 

                            IMPAX LABORATORIES, INC.

 

            3.50% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2012

 

                               PURCHASE AGREEMENT

 

                                                                   June 26, 2005

 

To the purchasers set forth on Schedule I hereto.

 

Dear Sirs and Mesdames:

 

        Impax Laboratories, Inc., a Delaware corporation (the "COMPANY"),

confirms its agreement with respect to the proposed issuance and sale to the

several purchasers named in Schedule I hereto (each, a "PURCHASER" and

collectively, the "PURCHASERS") of $75,000,000 principal amount of the Company's

3.50% Convertible Senior Subordinated Debentures Due 2012 (the "SECURITIES") to

be issued pursuant to the provisions of an Indenture to be dated as of June 27,

2005 (the "INDENTURE") between the Company and HSBC Bank USA, National

Association, as Trustee (the "TRUSTEE"). The Securities will be convertible into

shares (the "UNDERLYING SECURITIES") of common stock, par value $.01 per share,

of the Company (the "COMMON STOCK").

 

        The Securities are being issued and sold to the Purchasers in compliance

with an exemption from registration under the Securities Act of 1933, as amended

(the "SECURITIES ACT").

 

        Pursuant to the terms of the Securities and the Indenture, the

Securities may be resold or otherwise transferred only if the resale or transfer

is hereinafter registered under the Securities Act or an exemption from

registration under the Securities Act is available. The Purchasers and their

permitted transferees will be entitled to the benefits of a Registration Rights

Agreement dated as of the Closing Date (as defined herein) among the Company and

the Purchasers (the "REGISTRATION RIGHTS AGREEMENT" and collectively with this

Agreement, the Indenture and the Securities, the "TRANSACTION DOCUMENTS").

 

        1.       Representations and Warranties. The Company represents and

warrants to, and agrees with, the Purchasers that, except as disclosed in the

disclosure schedule attached to this Purchase Agreement (the "DISCLOSURE

SCHEDULE"), the Exchange Act Documents (as defined in Section 1(a) of this

Purchase Agreement) or the 8-K Filing (as defined in Section 6(k) of this

Purchase Agreement):

 

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                (a)      Each document, if any, filed with the Securities and

        Exchange Commission (the "COMMISSION") pursuant to the

         Securities Exchange Act of 1934, as amended (the "EXCHANGE

        ACT"), since January 1, 2003 (collectively, the "EXCHANGE ACT

        DOCUMENTS") complied in all material respects with the

        requirements of the Exchange Act and the applicable rules and

        regulations of the Commission thereunder and, when taken

        together, do not contain any untrue statement of a material fact

        or omit to state a material fact necessary to make the

        statements therein, in the light of the circumstances under

        which they were made, not misleading.

 

                (b)      The Company has been duly incorporated, is validly

        existing as a corporation in good standing under the laws of the State

        of Delaware, has the corporate power and authority to own its property

        and to conduct its business as described in the Exchange Act Documents

        and is duly qualified as a foreign corporation to transact business and

        is in good standing in each jurisdiction in which the conduct of its

        business or its ownership or leasing of property requires such

        qualification, except to the extent that the failure to be so qualified

        or be in good standing would not have a Material Adverse Effect. As used

        in this Agreement, "MATERIAL ADVERSE EFFECT" means any material adverse

        effect on the business, assets, results of operations or condition

        (financial or otherwise) of the Company or on the transactions

        contemplated hereby and in the Transaction Documents or on the authority

        or ability of the Company to perform its obligations contemplated hereby

        or thereby.

 

                (c)      The Company has no direct or indirect subsidiaries.

 

                (d)      This Agreement has been duly authorized, executed and

        delivered by the Company and constitutes the legal, valid and binding

        obligations of the Company, enforceable against it in accordance with

        its terms, subject to applicable bankruptcy, insolvency, fraudulent

        conveyance or transfer, reorganization, moratorium and similar laws

        affecting creditors' rights and remedies generally, and to general

        principles of equity, including principles of materiality, commercial

        reasonableness, good faith and fair dealing (regardless of whether

        enforcement is sought in a proceeding at law or in equity) and except

        that rights to indemnification and contribution thereunder may be

        limited by federal or state securities laws or public policy relating

        thereto that have not been previously waived (collectively, the

        "ENFORCEABILITY EXCEPTIONS").

 

                (e)      The authorized capital stock of the Company conforms in

        all material respects to the description thereof contained in Section

        1(e) of the Disclosure Schedule, and which description conforms in all

        material respects to the rights in the instruments defining the same.

 

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                (f)      The shares of Common Stock outstanding prior to the

        issuance of the Securities have been duly authorized and are validly

        issued, fully paid and non-assessable.

 

                (g)      The Securities have been duly authorized and, when

        executed and authenticated in accordance with the provisions of the

        Indenture and delivered to and paid for by the Purchasers in accordance

        with the terms of this Agreement, will be valid and binding obligations

        of the Company, enforceable in accordance with their terms, subject to

        the Enforceability Exceptions, and will be entitled to the benefits of

        the Indenture and the Registration Rights Agreement.

 

                (h)      The Underlying Securities issuable upon conversion of

        the Securities have been duly authorized and reserved and, when issued

        upon conversion of the Securities in accordance with the terms of the

        Securities, will be validly issued, fully paid and non-assessable, and

        the issuance of the Underlying Securities will not be subject to any

        preemptive or similar rights.

 

                (i)      Except for the registration rights contained in (A) the

        Registration Rights Agreement and (B) (i) the Strategic Alliance

        Agreement dated June 27, 2001, between Teva Pharmaceuticals Curacao,

        N.V. and Impax Laboratories, Inc. (ii) the Registration Rights Agreement

        dated as of June 27, 2001 by and between Impax Laboratories, Inc. and

        Teva Pharmaceuticals Curacao, N.V., and (iii) the Registration Rights

        Agreement dated as of May 7, 2003 by and among the Company and the

        investors named therein, the Company has not granted or agreed to grant

        to any person any rights (including "piggy-back" registration rights) to

        have any securities of the Company registered with the Commission or any

        other governmental authority that have not been satisfied or waived.

 

                 (j)      Except for the Stockholders' Agreement dated December

        14, 1999 by and among Global Pharmaceutical Corporation (known now as

        Impax Laboratories, Inc.) and the investors named therein, as amended by

        Amendment No. 1 thereto dated as of March 23, 2000, there are no voting

        agreements, voting trusts, proxies or other agreements or understandings

        with respect to the voting of any capital stock of the Company of which

        the Company is a party.

 

                 (k)      Each of the Indenture and the Registration Rights

        Agreement has been duly authorized, executed and delivered by, and is a

        valid and binding agreement of, the Company enforceable in accordance

        with its terms, subject to the Enforceability Exceptions.

 

                (l)      The execution and delivery by the Company of, and the

        performance by the Company of its obligations under, the Transaction

        Documents will not contravene in any material respect any provision of

 

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        applicable law or the certificate of incorporation or by-laws of the

        Company or any agreement or other instrument binding upon the Company

        that is material to the Company for which a waiver or consent has not

        been obtained, or any judgment, order or decree of any governmental

        body, agency or court having jurisdiction over the Company, and no

        consent, approval, authorization or order of, or qualification with, any

        governmental body or agency is required for the performance by the

        Company of its obligations under the Transaction Documents, except such

        as may be required by the securities or Blue Sky laws of the various

         states in connection with the offer and sale of the Securities and by

        Federal and state securities laws with respect to the obligations of the

        Company under the Registration Rights Agreement or as may be required by

        the National Association of Securities Dealers, Inc. ("NASD") or such

        the failure of which to obtain would not, individually or in the

        aggregate, have a Material Adverse Effect.

 

                (m)      Since September 30, 2004, there has been no change or

        development that has had a Material Adverse Effect. The Company has not

        taken any steps to seek protection pursuant to any bankruptcy law nor

        does the Company have knowledge that its creditors intend to initiate

        involuntary bankruptcy proceedings or knowledge of any fact which would

        reasonably lead a creditor to do so. The Company is not as of the date

        hereof, and after giving effect to the transactions contemplated hereby

        to occur at the Closing, will not be Insolvent. For purposes hereof,

        "INSOLVENT" shall have the meaning specified in Section 271 of Article

        10 of the New York Debtor and Creditor Law, as the same has been

        construed by case law in existence as of the date hereof. All

        Indebtedness of the Company as of May 31, 2005 is disclosed on Section

        1(m) of the Disclosure Schedule. There has been no material change in

        the Indebtedness since such date.

 

                (n)      The Company is not in violation of its certificate of

        incorporation 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 to which the Company is a party or by which the

        Company or its properties or assets is subject or bound, except for such

        defaults that would not, individually or in the aggregate, have a

        Material Adverse Effect.

 

                (o)      There are no legal or governmental proceedings, orders,

        judgments, writs, injunctions, decrees or demands pending or, to the

        Company's knowledge, threatened to which the Company is a party or to

        which any of the properties or assets of the Company is subject or bound

        other than proceedings, orders, judgments, writs, injunctions, decrees

        or

 

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        demands that would not, individually or in the aggregate, have a

        Material Adverse Effect.

 

                (p)      To the Company's knowledge, the Company (i) is in

        compliance with any and all applicable foreign, federal, state and local

        laws and regulations relating to the protection of human health and

        safety, the environment or hazardous or toxic substances or wastes,

        pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) has received all

        permits, licenses or other approvals required of it under applicable

        Environmental Laws to conduct its business, (iii) is in compliance with

        all material terms and conditions of any such permit, license or

        approval, (iv) is in compliance with any provisions of the Employee

        Retirement Income Security Act of 1974, as amended, ("ERISA") or the

        rules and regulations promulgated thereunder and (v) is in compliance

        with any provisions of the U.S. Foreign Corrupt Practices Act of 1977,

        as amended, (the "FOREIGN CORRUPT PRACTICE ACT") or the rules and

        regulations promulgated thereunder, except, with respect to clauses (i)

        through (v), where such noncompliance with Environmental Laws, failure

        to receive required permits, licenses or other approvals, or

        noncompliance with ERISA or the Foreign Corrupt Practices Act or failure

        to comply with the terms and conditions of such permits, licenses or

        approvals, would not, individually or in the aggregate, have a Material

        Adverse Effect

 

                (q)      There are no costs or liabilities to the Company

        associated with Environmental Laws (including, without limitation, any

        capital or operating expenditures required for clean-up, closure of

        properties or compliance with Environmental Laws or any permit, license

        or approval, any related constraints on operating activities and any

        potential liabilities to third parties) which would, individually or in

        the aggregate, have a Material Adverse Effect.

 

                (r)      The Company is not, and after giving effect to the

        issuance and sale of the Securities and the application of the proceeds

        thereof as contemplated in Section 3 hereof will not be, required to

        register as an "investment company" as such term is defined in the

        Investment Company Act of 1940, as amended.

 

                (s)      Neither the Company nor any of its affiliates (as

        defined in Rule 501(b) of Regulation D under the Securities Act, each an

        "AFFILIATE") has directly, or through any agent, (i) sold, offered for

        sale, solicited offers to buy or otherwise negotiated in respect of, any

        security (as defined in the Securities Act) which is or will be

        integrated with the sale of the Securities in a manner that would

        require the registration under the Securities Act of the Securities or

        (ii) offered, solicited offers to buy or sold the Securities by any form

         of general solicitation or general advertising (as those terms are used

        in Regulation D under the Securities Act) or in any manner

 

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        involving a public offering within the meaning of Section 4(2) of the

        Securities Act.

 

                (t)      Subject to compliance by the Purchasers with the

        representations and warranties set forth in Section 7, it is not

        necessary in connection with the offer, sale and delivery of the

        Securities to the Purchasers in the manner contemplated by this

        Agreement to register the Securities under the Securities Act or to

        qualify the Indenture under the Trust Indenture Act of 1939, as amended.

 

                (u)       The Securities satisfy the requirements set forth in

        Rule 144A(d)(3) under the Securities Act.

 

                (v)      The books, records and accounts of the Company in all

        material respects accurately and fairly reflect, in reasonable detail,

        the transactions in, and dispositions of, the assets of, and the results

        of operations of, the Company. The Company maintains a system of

        accounting controls sufficient to provide reasonable assurances that (i)

        transactions are executed in accordance with management's general or

        specific authorization, (ii) transactions are recorded as necessary to

        permit preparation of financial statements in conformity with generally

        accepted accounting principles and to maintain accountability for

        assets, (iii) access to assets is permitted only in accordance with

        management's general or specific authorization and (iv) the recorded

        accountability for assets is compared with existing assets at reasonable

        intervals and appropriate action is taken with respect to any

        differences.

 

                (w)      The Company owns or possesses, or has the right to use,

        all material patents, patent rights, licenses, inventions, copyrights,

        know-how (including trade secrets and other unpatented and/or

        unpatentable proprietary or confidential information, systems or

        procedures), trademarks, service marks, trade names and approved FDA new

        drug applications, approved abbreviated new drug applications and

        approved new animal drug applications currently employed or required by

        it in connection with the business currently conducted by it, or as

        currently proposed to be conducted, as described in the Exchange Act

        Documents, except such as the failure to so own or possess or have the

        right to use would not have, individually or in the aggregate, a

        Material Adverse Effect. To the Company's knowledge, there are no valid

        and enforceable United States patents that are infringed by the business

        currently conducted by the Company, or as currently proposed to be

        conducted by the Company, as described in the Exchange Act Documents and

        which infringement would have a Material Adverse Effect. The Company is

        not aware of any basis for a finding that the Company does not have

        valid title or license rights to the patents and patent applications

        referenced in the Exchange Act Documents as owned or licensed by the

        Company. To the

 

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        Company's knowledge, the Company is not subject to any judgment, order,

        writ, injunction or decree of any court or any Federal, state, local,

        foreign or other governmental department, commission, board, bureau,

        agency or instrumentality, domestic or foreign, or any arbitrator, nor

        has it entered into or are a party to any contract, which restricts or

         impairs the use of any of the foregoing which would, individually or in

        the aggregate, have a Material Adverse Effect. The Company is not aware

        of any prior art that may render any patent application owned by the

        Company which has not been disclosed to the United States Patent and

        Trademark Office and which would, individually or in the aggregate, have

        a Material Adverse Effect. The Company has not received any written

        notice of infringement of or conflict with asserted rights of any third

        party with respect to the business currently conducted by them as

        described in the Exchange Act Documents and which would, individually or

        in the aggregate, have a Material Adverse Effect.

 

                 (x)      Other than with respect to Environmental Laws and ERISA

        (which are governed by Section 1(p)) the Company has such permits,

        licenses, consents, exemptions, franchises, authorizations and other

        approvals (each, an "AUTHORIZATION") of, and has made all filings with

        and notices to, all appropriate federal, state, local or foreign

        governmental or regulatory authorities and self regulatory organizations

        and all courts and other tribunals, as are necessary to own, lease,

        license and operate its respective properties and to conduct its

        business, except to the extent the failure to have any such

        Authorization or to make any such filing or notice would not,

        individually or in the aggregate, have a Material Adverse Effect. Each

        such Authorization is valid and in full force and effect and the Company

        is in compliance with all the terms and conditions thereof and with the

        rules and regulations of the authorities and governing bodies having

        jurisdiction with respect thereto, and no event has occurred (including,

        without limitation, the receipt of any notice from any authority or

        governing body) which allows or, after notice or lapse of time or both,

        would allow, revocation, suspension or termination of any such

        Authorization or results or, after notice or lapse of time or both,

        would result in any other impairment of the rights of the holder of any

         such Authorization except to the extent such failure to be valid and in

        full force and effect or to be in compliance, the occurrence of any such

        event or the presence of any such restriction would not, individually or

        in the aggregate, have a Material Adverse Effect.

 

                (y)      There are no outstanding subscriptions, rights,

        warrants, options, calls, convertible securities, commitments of sale or

        liens granted or issued by the Company relating to or entitling any

        person to purchase or otherwise to acquire any shares of the capital

        stock of the Company, except for options granted to directors and

        employees of the Company in the ordinary course of business since

        December 31, 2003.

 

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                (z)      The financial statements included or incorporated by

        reference in the Exchange Act Documents, together with related schedules

        and notes, present fairly in all material respects the financial

        position, results of operations and changes in financial position of the

        Company 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 with generally

        accepted accounting principles consistently applied throughout the

        periods involved, except as disclosed therein; and the other financial

        and statistical information and data set forth in the Exchange Act

        Documents 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.

 

                (aa)     There are no existing or, to the Company's knowledge,

        threatened labor disputes with the employees of the Company which would,

        individually or in the aggregate, have a Material Adverse Effect.

 

                (bb)     The Company's manufacturing, distribution and marketing

        practices are in compliance with all applicable laws, rules,

        regulations, orders, licenses, judgments, writs, injunctions, or

        decrees, including, without limitation, laws and regulations

        administered by the United States Food and Drug Administration (the

        "FDA") and the Drug Enforcement Administration ("DEA") and comparable

        regulatory agencies in each country in which the Company's products are

        marketed, except for such noncompliances that would not, individually or

        in the aggregate, have a Material Adverse Effect.

 

                (cc)     The Company has not and will not use the services of any

        person debarred under the provisions of the Generic Drug Enforcement Act

        of 1992, 21 U.S.C. Section 335(a)(b). None of the Company's officers or

        employees has been convicted of a felony under federal law for conduct

        relating to the development, approval or regulation of any product

        subject to the Federal Food, Drug, and Cosmetic Act or the Controlled

        Substances Act.

 

                (dd)     There are no rulemaking or similar proceedings before

        the FDA or comparable Federal, state, local or foreign government bodies

        which involves the Company, which, if the subject of an action

        unfavorable to the Company, would, individually or in the aggregate,

        have a Material Adverse Effect.

 

                (ee)     The Company has not received any written communication

        notifying the Company as to the termination or threatened termination or

        modification or threatened modification of any consulting, licensing,

        marketing, research and development, cooperative or any similar

        agreement described in the Exchange Act Documents.

 

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                (ff)     The statements relating to legal matters or proceedings,

        as specified on Section 1(ff) of the Disclosure Schedule, fairly

        summarize in all material respects such matters or proceedings as of the

        date hereof.

 

                (gg)     Neither the Company, nor to the Company's knowledge, any

        of its officers, directors or affiliates has taken, directly or

        indirectly, any action designed to or which has constituted the

        stabilization or manipulation of the price of the Common Stock or any

        security convertible into or exchangeable or exercisable for Common

        Stock to facilitate the sale or resale of any of the Securities.

 

                (hh)     The Company has filed all Federal, state, local and

        foreign tax returns which are required to be filed through the date

        hereof (except where the failure to so file would not have a material

        adverse effect on the Company), which returns are true and correct in

        all material respects, or have received extensions thereof, and have

        paid all taxes shown on such returns and all assessments received by

        them to the extent that the same are material and have become due. To

        the Company's knowledge, there are no tax audits or investigations

        pending, which if adversely determined, would, individually or in the

        aggregate, have a Material Adverse Effect.

 

                (ii)     The Company is insured against such losses and risks and

        in such amounts as are customary in the businesses in which it is

        engaged or currently proposes to engage including, but not limited to,

        insurance covering clinical trial liability, product liability and real

        or personal property owned or leased against theft, damage, destruction,

        act of vandalism and all other risks customarily insured against. All

         policies of insurance and fidelity or surety bonds insuring the Company

        or the Company's businesses, assets, employees, officers and directors

        are in full force and effect. The Company is in compliance with the

        terms of such policies and instruments in all material respects. The

        Company has no reason to believe that it will not be able to renew its

        existing insurance coverage as and when such coverage expires or to

        obtain similar coverage from similar insurers as may be necessary to

        continue its business at a cost that would not, individually or in the

        aggregate, have a Material Adverse Effect. Since January 1, 2003, the

        Company has not been denied any insurance coverage which it has sought

        or for which it has applied.

 

                (jj)     The Company has good and marketable title in fee simple

        to all real property and good and valid title to all personal property

        it purports to own, in each case free and clear of all liens,

        encumbrances and defects except such 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. Any real property

         and buildings held under lease by the Company is held by it under valid,

        subsisting and enforceable leases with such exceptions as are not

        material and do not interfere with

 

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        the use made and proposed to be made of such property and buildings by

        the Company.

 

                (kk)     There is no document, contract or other agreement of a

        character required to be filed with the Commission under the Exchange

        Act which is not filed as required by the Exchange Act or the rules and

        regulations of the Commission thereunder. Each description of a

        contract, document or other agreement in the Exchange Act Documents

        fairly reflects in all material respects the material terms of the

        underlying document, contract or agreement. Each material agreement

        described in the Exchange Act Documents or incorporated by reference is

        in full force and effect and is valid and enforceable by and against the

        Company in accordance with its terms.

 

                (ll)     Anything in this Agreement or elsewhere herein to the

        contrary notwithstanding, it is understood and acknowledged by the

        Company (i) that none of the Purchasers have been asked to agree, nor

        has any Purchaser agreed, to desist from purchasing or selling, long

        and/or short, securities of the Company, or "derivative" securities

        based on securities issued by the Company or to hold the Securities for

        any specified term and (ii) that any Purchaser, and counter parties in

        "derivative" transactions to which any such Purchaser is a party,

        directly or indirectly, presently may have a "short" position in the

        Common Stock. The Company further understands and acknowledges that one

        or more Purchasers may engage in hedging activities at various times

        during the period that the Securities are outstanding.

 

                (mm)     The Company confirms that, after giving effect to the

        8-K Filing (as defined below), neither it nor, to its knowledge, any

        officer, director or agent of the Company has provided any of the

        Purchasers or their respective agents or counsel with any information

        that constitutes in the Company's reasonable determination material,

        nonpublic information. The Company understands and confirms that each of

        the Purchasers will rely on the foregoing representations in effecting

        transactions relating to the Securities. All written disclosure provided

        to the Purchasers regarding the Company, its business and the

        transactions contemplated hereby, including the Schedules to this

        Agreement, furnished by or on behalf of the Company, taken as a whole,

        are true and correct and do not contain any untrue statement of a

        material fact or omit to state any material fact necessary in order to

        make the statements made therein, in the light of the circumstances

        under which they were made, not misleading, except that at the request

        of the Purchasers, the Company has not disclosed to the Purchasers

        information concerning the financial condition, results of operations

        and cash flows of the Company as of and for the year ended December 31,

        2004 and as of and for the three months ended March 31, 2005. The

        Company acknowledges and agrees that no Purchaser makes or

 

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        has made any representations or warranties with respect to the

        transactions contemplated hereby other than those specifically set forth

        in Section 7.

 

        2.       Agreements to Sell and Purchase. On the basis of the

representations and warranties contained in this Agreement and subject to its

terms and conditions, the Company hereby agrees to sell to the several

Purchasers, and each Purchaser, upon the basis of the representations and

warranties herein contained, but subject to the conditions hereinafter stated,

agrees, severally and not jointly, to purchase from the Company the respective

principal amount of Securities set forth in Schedule I hereto opposite its name

at a purchase price of 100% of the principal amount thereof (the "PURCHASE

PRICE").

 

        3.       Delivery of Proceeds. The proceeds to be delivered on the

Closing Date (as defined in Section 4 hereof) in the aggregate amount of

$75,000,000 (less the expenses of Highbridge International LLC (the "LEAD

PURCHASER") payable pursuant to Section 6(b) hereof, as set forth on a schedule

to be provided by the Lead Purchaser to the Company prior to the Closing) shall

be used only to satisfy the payment obligations arising from the acceleration of

the Company's 1.25% Convertible Senior Subordinated Debentures due April 1,

2024, which satisfaction shall be effective simultaneously with the Closing.

 

        4.       Payment and Delivery. Payment for the Securities shall be made

to, or as directed by, the Company in Federal or other funds immediately

available in New York City against delivery of such Securities for the

respective accounts of the several Purchasers at 10:00 a.m., New York City time,

on June 27, 2005, or at such other time on the same or such other date as shall

be mutually agreeable to the Company and the Lead Purchaser. The time and date

of such payment are hereinafter referred to as the "CLOSING DATE."

 

        The Securities shall be in definitive form or global form, as specified

by the Lead Purchaser, and registered in such names and in such denominations as

the applicable Purchaser shall request in writing not later than one full

Business Day prior to the Closing Date. The Securities shall be delivered to

each Purchaser on the Closing Date for the account of such Purchaser, with any

transfer taxes, if any, payable in connection with the transfer of the

Securities to the Purchasers duly paid, against payment of the Purchase Price

therefor.

 

        5.       Conditions to the Purchasers' Obligations. The several

obligations of the Purchasers to purchase and pay for the Securities on the

Closing Date are subject to the following conditions:

 

                (a)      Subsequent to the execution and delivery of this

        Agreement and prior to the Closing Date:

 

                         (i)      there shall not have occurred any downgrading,

                nor shall any notice have been given of any intended or

                potential downgrading or of any review for a possible change

                that does not

 

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                indicate the direction of the possible change, in the rating

                accorded the Company or any of the Company's securities or in

                the rating outlook for the Company by any "nationally recognized

                statistical rating organization," as such term is defined for

                purposes of Rule 436(g)(2) under the Securities Act; and

 

                        (ii)     there shall not have occurred any event that has

                a Material Adverse Effect.

 

                (b)      The Purchasers shall have received on the Closing Date a

        certificate, dated the Closing Date and signed by an executive officer

        of the Company, to the effect set forth in Section 5(a)(i) and to the

        effect that the representations and warranties of the Company contained

        in this Agreement are true and correct as of the Closing Date and that

        the Company has complied with all of the agreements and satisfied all of

        the conditions on its part to be performed or satisfied hereunder on or

        before the Closing Date.

 

                The officer signing and delivering such certificate may rely

        upon the bes