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Exhibit 1.1
PRESTIGE BRANDS, INC.
$210,000,000
9-1/4% Senior Subordinated Notes due 2012
Purchase Agreement
March 30, 2004
Citigroup Global Markets Inc.
Banc of America Securities LLC
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
As Representatives of the Initial
Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Prestige Brands,
Inc. (formerly known as Medtech Acquisition, Inc.), a
corporation organized under the laws of the
State of Delaware (the "COMPANY"),
proposes to issue and sell to the several
parties named in Schedule I hereto
(the "INITIAL PURCHASERS"), for whom you
(the "REPRESENTATIVES") are acting as
representatives, $210,000,000 aggregate
principal amount of its 9-1/4% Senior
Subordinated Notes due 2012 (the "NOTES,"
and together with the Guarantees (as
defined below), the "SECURITIES"). The
Securities are to be issued under an
indenture (the "INDENTURE"), to be dated as
of the Closing Date (as defined
below), among the Company, the Guarantors
(as defined below) and U.S. Bank
National Association, as trustee (the
"TRUSTEE"). The Securities will have the
benefit of a registration rights agreement
(the "REGISTRATION RIGHTS
AGREEMENT"), to be dated as of the Closing
Date, among the Company, the
Guarantors and the Initial Purchasers,
pursuant to which the Company and the
Guarantors will agree to register a new
series of notes (the "EXCHANGE NOTES")
and related guarantees (the "EXCHANGE
GUARANTEES," and, together with the
Exchange Notes, the "EXCHANGE SECURITIES")
under the Act subject to the terms
and conditions therein specified. The Notes
will be unconditionally guaranteed
(the "GUARANTEES") by Prestige Products
Holdings, Inc. (formerly known as
Medtech Acquisition Holdings, Inc.), the
Company's direct parent company
("HOLDINGS"), Prestige Brands
International, LLC (formerly known as New
Intermediate LLC), Holdings' direct parent
company ("PARENT"), by each of the
entities set forth on Schedule II-A hereto
(the "PRESTIGE GUARANTORS") and each
of the entities set forth on Schedule II-B
hereto (the "MEDTECH GUARANTORS," and
together with the Parent, Holdings and the
Prestige Guarantors, the
"GUARANTORS"). To the extent there are no
additional parties listed on Schedule
I other than you, the term Representatives
as used herein shall mean you as the
Initial Purchasers, and the terms
Representatives and Initial Purchasers shall
mean either the singular or plural as the
context
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requires. The use of the neuter in this
Agreement shall include the feminine and
masculine wherever appropriate. Certain
terms used herein are defined in Section
18 hereof.
Prestige
Acquisition Holdings, LLC ("ACQUISITION COMPANY"), a Delaware
limited liability company formed by the
Company's equity sponsor, GTCR Golder
Rauner ("GTCR"), Prestige MergerSub, Inc.,
Bonita Bay Holdings, Inc., a Virginia
corporation ("BONITA BAY"), and the
Shareholders' Representative signatory
thereto, have entered into an agreement
(the "ACQUISITION AGREEMENT"), dated as
of February 10, 2004, pursuant to which
Acquisition Company will acquire 100% of
the outstanding capital stock of Prestige
Brands International, Inc. (the
"ACQUISITION"). In connection with the
Acquisition and the offering of the
Securities, the Company and the Guarantors
will enter into new senior secured
credit facilities in the amount of up to
$515.0 million pursuant to a credit
agreement among the Company, the
Guarantors, Citicorp North America, Inc., as
administrative agent and collateral agent,
Bank of America, N.A., as syndication
agent, and Merrill Lynch Capital, a
division of Merrill Lynch Business Services,
Inc., as documentation agent (the "SENIOR
CREDIT FACILITIES"). As described in
the Final Memorandum (as defined below),
the net proceeds from the offering of
the Securities and borrowings under the
Senior Credit Facilities will be used to
fund the Acquisition, to repay outstanding
indebtedness and to pay transaction
fees and expenses incurred in connection
therewith. The time of the consummation
of the Acquisition shall be on the Closing
Date (as defined in Section 3). The
closing of the Acquisition and the entering
into of the Senior Credit Facilities
are each a condition to the closing of this
offering. All references herein to
the Company and the Guarantors and the
other subsidiaries of the Parent and the
Company include such entities as they will
be constituted immediately following
the consummation of the Acquisition.
Notwithstanding
any provision herein to the contrary, all representations,
warranties, covenants and agreements herein
of the Prestige Guarantors shall not
be effective prior to the Closing Date and
the parties hereto agree and
acknowledge that the Prestige Guarantors
shall execute and deliver this
Agreement on (but not before) the Closing
Date.
The sale of the
Securities to the Initial Purchasers will be made without
registration of the Securities under the
Act in reliance upon exemptions from
the registration requirements of the
Act.
In connection
with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated
March 19, 2004 (as amended or
supplemented at the date thereof, the
"PRELIMINARY MEMORANDUM"), and a final
offering memorandum, dated March 30, 2004
(as amended or supplemented at the
Execution Time, the "FINAL MEMORANDUM").
Each of the Preliminary Memorandum and
the Final Memorandum sets forth certain
information concerning the Company and
the Securities. The Company hereby confirms
that it has authorized the use of
the Preliminary Memorandum and the Final
Memorandum, and any amendment or
supplement thereto, in connection with the
offer and sale of the Securities by
the Initial Purchasers.
1. REPRESENTATIONS AND WARRANTIES. The Company and the
Guarantors,
jointly and severally, represent and
warrant to each Initial Purchaser as set
forth below in this Section 1.
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(a) The Preliminary Memorandum, at the date thereof, did not
contain
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.
At the Execution Time and on the
Closing Date, the Final Memorandum did not
and will not (and any amendment or
supplement thereto, at the date thereof and
at the Closing Date will not)
contain 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;
PROVIDED, HOWEVER, that the Company
and the Guarantors make no representation
or warranty as to the information
contained in or omitted from the
Preliminary Memorandum or the Final Memorandum,
or any amendment or supplement thereto, in
reliance upon and in conformity with
information furnished in writing to the
Company by or on behalf of the Initial
Purchasers through the Representatives
specifically for inclusion therein.
(b) None of the Company, the Guarantors, any of its or their
Affiliates, or any person acting on its or
their behalf has, directly or
indirectly, made offers or sales of any
security, or solicited offers to buy,
any security under circumstances that would
require the registration of the
Securities under the Act.
(c) None of the Company, the Guarantors, any of its or their
Affiliates, or any person acting on its or
their behalf has: (i) engaged in any
form of general solicitation or general
advertising (within the meaning of
Regulation D) in connection with any offer
or sale of the Securities or (ii)
engaged in any directed selling efforts
(within the meaning of Regulation S)
with respect to the Securities; and each of
the Company, its Affiliates and each
person acting on its or their behalf has
complied with the offering restrictions
requirement of Regulation S.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) No registration under the Act of the Securities is required
for
the offer and sale of the Securities to or
by the Initial Purchasers in the
manner contemplated herein and in the Final
Memorandum.
(f) Neither the Company nor any of the Guarantors is, and after
giving
effect to the offering and sale of the
Securities and the application of the
proceeds thereof as described in the Final
Memorandum will be, an "investment
company" as defined in the Investment
Company Act, without taking account of any
exemption arising out of the number of
holders of the Company's securities.
(g) Neither the Company nor any of the Guarantors has paid or
agreed
to pay to any person any compensation for
soliciting another to purchase any
securities of the Company (except as
contemplated in this Agreement).
(h) Neither the Company nor any Guarantor has taken, directly
or
indirectly, any action designed to or that
has constituted or that might
reasonably be expected to cause or result,
under the Exchange Act or otherwise,
in stabilization or manipulation of the
price of any security of the Company to
facilitate the sale or resale of the
Securities.
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(i) Each of the Company, the Guarantors and each of their
subsidiaries
(1) has been duly incorporated and is
validly existing as a corporation, limited
liability company or partnership in good
standing under the laws of the
jurisdiction in which it is chartered or
organized with full corporate, limited
liability company or partnership power and
authority to own or lease, as the
case may be, and to operate its properties
and conduct its business as described
in the Final Memorandum, and (2) is duly
qualified to do business as a foreign
corporation, limited liability company or
partnership and is in good standing
under the laws of each jurisdiction that
requires such qualification, except
where the failure to be so qualified (i)
would not reasonably be expected to
have a material adverse effect on the
performance of this Agreement, the
Indenture or the Registration Rights
Agreement, or the consummation of any of
the transactions contemplated hereby or
thereby or (ii) would not reasonably be
expected to have a material adverse effect
on the condition (financial or
otherwise), prospects, earnings, business
or properties of the Parent and its
subsidiaries, taken as a whole, whether or
not arising from transactions in the
ordinary course of business (a "MATERIAL
ADVERSE EFFECT").
(j) Schedule III-A hereto sets forth all of the Company's direct
and
indirect parent companies and each of the
Parent's direct and indirect domestic
subsidiaries as of the date hereof.
Schedule III-B hereto sets forth all of the
Company's direct and indirect parent
companies and each of the Parent's direct
and indirect domestic subsidiaries as of
the Closing Date.
(k) The authorized equity capitalization of Prestige
International
Holdings, LLC, the direct parent company of
the Parent, after the effectiveness
of the Acquisition is as set forth in the
Final Memorandum.
(l) All the outstanding shares of capital stock or limited
liability
company interests of each of the Company,
the Guarantors and each of their
respective subsidiaries have been duly
authorized and validly issued and are
fully paid and nonassessable, and, except
as otherwise set forth in the Final
Memorandum, all outstanding shares of
capital stock or limited liability company
interests of the subsidiaries are owned by
the Parent either directly or through
wholly owned subsidiaries free and clear of
any security interest, claim, lien
or encumbrance.
(m) The statements in the Final Memorandum under the headings
"Risk
Factors--Regulatory matters governing our
industry could have a significant
negative effect on our business,"
"Business--Regulatory",
"Business--Intellectual Property",
"Business--Legal Proceedings," "Certain
Relationships and Related Transactions,"
"Description of Notes," "Exchange
Offer; Registration Rights" and "Certain
Federal Income Tax Consequences" fairly
summarize in all material respects the
matters therein described.
(n) This Agreement has been duly authorized, executed and delivered
by
the Company, the Parent, Holdings and each
of the Medtech Guarantors. On the
Closing Date, this Agreement will have been
duly authorized, executed and
delivered by each of the Prestige
Guarantors.
(o) The Indenture has been duly and validly authorized by the
Company,
the Parent, Holdings and each of the
Medtech Guarantors and, on the Closing Date
will have been duly and validly authorized
by each of the Prestige Guarantors,
and assuming due authorization,
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execution and delivery thereof by the
Trustee, when executed and delivered by
the Company and each of the Guarantors,
will constitute a legal, valid, binding
instrument enforceable against the Company
and each of the Guarantors in
accordance with its terms (subject, as to
the enforcement of remedies, to
applicable bankruptcy, reorganization,
insolvency, moratorium or other laws
affecting creditors' rights generally from
time to time in effect and to general
principles of equity). On the Closing Date,
the Indenture will conform in all
material respects to the requirements of
the Trust Indenture Act of 1939, as
amended, and the rules and regulations of
the Commission applicable to an
indenture qualified thereunder.
(p) The Securities have been duly and validly authorized by the
Company, the Parent, Holdings and each of
the Medtech Guarantors, and, on the
Closing Date will have been duly and
validly authorized by each of the Prestige
Guarantors, and, when executed and
authenticated in accordance with the
provisions of the Indenture and delivered
to and paid for by the Initial
Purchasers, will have been duly executed
and delivered by the Company and each
of the Guarantors and will constitute the
legal, valid and binding obligations
of the Company and each of the Guarantors
entitled to the benefits of the
Indenture (subject, as to the enforcement
of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or
other laws affecting creditors' rights
generally from time to time in effect and
to general principles of equity).
(q) The Registration Rights Agreement has been duly and validly
authorized by the Company, the Parent,
Holdings and each of the Medtech
Guarantors and, on the Closing Date will
have been duly and validly authorized
by each of the Prestige Guarantors, and,
when executed and delivered by the
Company and each of the Guarantors, and
assuming due authorization, execution
and delivery thereof by the Initial
Purchasers, will constitute the legal,
valid, binding and enforceable instrument
of the Company and each of the
Guarantors (subject, as to the enforcement
of remedies, to applicable
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting
creditors' rights generally from time to
time in effect and to general
principles of equity).
(r) The Exchange Securities have been duly and validly authorized
by
the Company, the Parent, Holdings and each
of the Medtech Guarantors, and, on
the Closing Date will have been duly and
validly authorized by each of the
Prestige Guarantors, and, if and when
executed and authenticated in accordance
with the provisions of the Indenture and
delivered in accordance with the
registered exchange offer contemplated by
the Registration Rights Agreement,
will have been duly executed and delivered
by the Company and each of the
Guarantors and will constitute the legal,
valid and binding obligations of the
Company and each of the Guarantors entitled
to the benefits of the Indenture
(subject, as to the enforcement of
remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, or
other laws affecting creditors'
rights generally from time to time in
effect and to general principles of
equity).
(s) The Company and each of the Guarantors has all requisite
corporate, limited liability company or
partnership power and authority, and has
taken all requisite corporate, limited
liability company or partnership action
necessary to enter into and perform its
obligations under this Agreement, the
Indenture, the Securities, the Exchange
Securities, the Registration
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Rights Agreement, the Credit Documents (as
defined below) and the Acquisition
Documents (as defined below), to the extent
it is a party thereto.
(t) No consent, approval, authorization, filing with or order of
any
court or governmental agency or body is
required in connection with the
transactions contemplated herein or in the
Indenture or the Registration Rights
Agreement, except such as will be obtained
under the Act and the Trust Indenture
Act and such as may be required under the
blue sky laws of any jurisdiction in
connection with the purchase and
distribution of the Securities by the Initial
Purchasers in the manner contemplated
herein and in the Final Memorandum and the
Registration Rights Agreement and, in the
case of the Acquisition Agreement, the
filing of the Certificate of Merger in
connection with the Acquisition with the
Secretary of State of the State of Virginia
(which filing shall have been made
on or prior to the Closing Date).
(u) The Company and each of the Guarantors have all requisite
corporate, limited liability company or
partnership power and authority to enter
into (A) the Senior Credit Facilities and
(B) any and all other agreements and
instruments ancillary to or entered into in
connection with the transaction
contemplated by the Senior Credit
Facilities (collectively with the Senior
Credit Facilities, the "CREDIT
DOCUMENTS").
(v) Each of the Senior Credit Facilities and the other Credit
Documents have been duly and validly
authorized by the Company, the Parent,
Holdings and each of the Medtech
Guarantors, and, on the Closing Date will have
been duly and validly authorized by each of
the Prestige Guarantors, and when
executed and delivered by the Company and
each of the Guarantors (assuming due
authorization, execution and delivery by
the other parties thereto) will
constitute a legal, valid and binding
agreement of each of the Company and each
of the Guarantors, enforceable against the
Company and each of the Guarantors in
accordance with its terms (subject, as to
the enforcement of remedies, to
applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance, preference
and other laws affecting creditors' rights
generally from time to time in
effect, and to general principles of
equity, regardless of whether enforcement
is sought in a proceeding at law or in
equity). All representations and
warranties made by the Company and each of
the Guarantors in the Senior Credit
Facilities and the other Credit Documents
are true and correct in all material
respects as of the date hereof.
(w) Each of the Company, the Parent and the Medtech Guarantors, to
the
extent they are a party thereto, and, to
the Company's knowledge, Bonita Bay and
each of the Prestige Guarantors to the
extent they are a party thereto, have all
requisite corporate power and authority to
enter into (A) the Acquisition
Agreement and (B) any and all other
agreements and instruments ancillary to or
entered into in connection with the
transaction contemplated by the Acquisition
Agreement (collectively with the
Acquisition Agreement, the "ACQUISITION
DOCUMENTS").
(x) Each of the Acquisition Agreement and the other Acquisition
Documents has been duly and validly
authorized, executed and delivered by the
Company, the Parent, Holdings and each of
the Medtech Guarantors, to the extent
they are a party thereto, and (assuming due
authorization, execution and
delivery by the other parties thereto)
constitutes a legal, valid and binding
agreement of each of the Company, the
Parent, Holdings and each of the Medtech
Guarantors, to the extent they are a party
thereto, enforceable against the
Company, the Parent
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and each of the Medtech Guarantors in
accordance with its terms (subject, as to
the enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium,
fraudulent conveyance, preference and other
laws affecting creditors' rights
generally from time to time in effect, and
to general principles of equity,
regardless of whether enforcement is sought
in a proceeding at law or in
equity). All representations and warranties
made by the Company, the Parent,
Holdings and each of the Medtech
Guarantors, to the extent they are a party
thereto, and, to the Company's knowledge,
Bonita Bay and the Prestige Guarantors
(to the extent they are a party thereto),
in the Acquisition Agreement and the
other Acquisition Documents are true and
correct in all material respects as of
the date hereof.
(y) Neither the execution and delivery of this Agreement, the
Indenture, the Registration Rights
Agreement, the Senior Credit Facilities, the
other Credit Documents, the Acquisition
Agreement, the other Acquisition
Documents, the issue and sale of the
Securities and the Exchange Securities, nor
the consummation of any other of the
transactions herein or therein
contemplated, nor the performance by the
Company or any Guarantor of its
obligations hereunder or thereunder will
conflict with, result in a breach or
violation or imposition of any lien, charge
or encumbrance upon any property or
assets of the Company, the Guarantors or
any of their respective subsidiaries
pursuant to, (i) the charter, by-laws or
other organizational documents of the
Company, the Guarantors or any of their
respective subsidiaries; (ii) the terms
of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation,
condition, covenant or instrument to
which the Company, the Guarantors or any of
their respective subsidiaries is a
party or bound or to which their property
is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree
of any court, regulatory body,
administrative agency, governmental body,
arbitrator or other authority having
jurisdiction over the Company, the
Guarantors or any of their respective
subsidiaries or any of its or their
properties; except in the case of clauses
(ii) and (iii) above, for such conflicts,
breaches, violations or impositions
that would not reasonably be expected to
have a Material Adverse Effect.
(z) The combined historical financial statements and schedules
of
Medtech Holdings, Inc. ("MEDTECH") and The
Denorex Company ("DENOREX") included
in the Final Memorandum present fairly in
all material respects the financial
condition, results of operations and cash
flows of the Company as of the dates
and for the periods indicated and have been
prepared in conformity with
generally accepted accounting principles
applied on a consistent basis
throughout the periods involved (except as
otherwise noted therein).
(aa) To the knowledge of the Company, the historical financial
statements of Bonita Bay and its
consolidated subsidiaries included in the Final
Memorandum present fairly in all material
respects the financial condition,
results of operations and cash flows of
Bonita Bay and its consolidated
subsidiaries as of the dates and for the
periods indicated and have been
prepared in conformity with generally
accepted accounting principles applied on
a consistent basis throughout the periods
involved (except as otherwise noted
therein).
(bb) To the knowledge of the Company, the historical financial
statements of The Spic and Span Company and
its consolidated subsidiaries
included in the Final Memorandum present
fairly in all material respects the
financial condition, results of operations
and cash flows of The Spic and Span
Company and its consolidated subsidiaries
as of the dates and for the
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periods indicated and have been prepared in
conformity with generally accepted
accounting principles applied on a
consistent basis throughout the periods
involved (except as otherwise noted
therein).
(cc) The summary financial data set forth under the captions
"Summary--Summary Unaudited Pro Forma
Financial Data," "Summary--Summary
Historical Combined Financial Data of
Medtech and Denorex," "Summary--Summary
Historical Financial Data of Prestige" and
"Summary--Summary Historical
Financial Data of Spic and Span," in the
Final Memorandum fairly present in all
material respects, on the basis stated in
the Final Memorandum, the information
included therein.
(dd) The selected financial data set forth under the caption
"Selected
Financial Data" in the Final Memorandum
fairly present, on the basis stated in
the Final Memorandum, the information
included therein; the pro forma financial
statements included in the Final Memorandum
include assumptions that provide a
reasonable basis for presenting the
significant effects directly attributable to
the transactions and events described
therein; the related pro forma adjustments
give appropriate effect to those
assumptions; and the pro forma adjustments
reflect the proper application of those
adjustments to the historical financial
statement amounts in the pro forma
financial statements included in the Final
Memorandum.
(ee) No action, suit or proceeding by or before any court or
governmental agency, authority or body or
any arbitrator involving the Company,
the Guarantors or any of their respective
subsidiaries or properties is pending
or, to the best knowledge of the Company,
threatened that would not reasonably
be expected to have a Material Adverse
Effect, except as set forth in or
contemplated in the Final Memorandum
(exclusive of any amendment or supplement
thereto).
(ff) Each of the Company, the Guarantors and their respective
subsidiaries owns or leases all such
properties as are necessary to the conduct
of their respective operations as presently
conducted.
(gg) Neither of the Company, the Guarantors nor any of their
respective subsidiaries is in violation or
default of (i) any provision of its
charter, bylaws or other organizational
documents; (ii) the terms of any
indenture, contract, lease, mortgage, deed
of trust, note agreement, loan
agreement or other agreement, obligation,
condition, covenant or instrument to
which it is a party or bound or to which
its property is subject; or (iii) any
statute, law, rule, regulation, judgment,
order or decree applicable to the
Company, the Guarantors or any of their
respective subsidiaries of any court,
regulatory body, administrative agency,
governmental body, arbitrator or other
authority having jurisdiction over the
Company, the Guarantors or such
subsidiary or any of its properties, as
applicable, except, in the case of
clauses (ii) and (iii) where such violation
or default, either individually or
in the aggregate, would not reasonably be
expected to have a Material Adverse
Effect.
(hh) PricewaterhouseCoopers LLP, who have certified certain
financial
statements of (1) Medtech and Denorex and
(2) The Spic and Span Company and
delivered their reports with respect to the
audited consolidated financial
statements and schedules included in
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the Final Memorandum, are independent
public accountants with respect to each of
such companies within the meaning of the
Act.
(ii) Ernst & Young LLP, who have certified certain
financial
statements of Bonita Bay Holdings, Inc. and
its consolidated subsidiaries and
delivered their report with respect to the
audited consolidated financial
statements and schedules included in the
Final Memorandum, are independent
public accountants with respect to such
company within the meaning of the Act.
(jj) Deloitte & Touche LLP, who have certified certain
financial
statements of the Murine and Clear Eyes
Products Lines of the Ross Products
Division of Abbott Laboratories. and its
consolidated subsidiaries (the "CLEAR
EYES MURINE FINANCIALS") and delivered
their report with respect to the audited
combined statements and supplemental
combining schedules included in the Final
Memorandum, are independent public
accountants with respect to such entities
within the meaning of the Act.
(kk) There are no stamp or other issuance or transfer taxes or
duties
or other similar fees or charges required
to be paid in connection with the
execution and delivery of this Agreement or
the Indenture by the Company and the
Guarantors or the issuance or sale by the
Company or the Guarantors of the
Securities or the Exchange Securities.
(ll) The Company, the Guarantors and each of their subsidiaries
has
filed all non-U.S., U.S. federal, state and
local tax returns that are required
to be filed or has requested extensions
thereof (except in any case in which the
failure so to file would not have a
Material Adverse Effect and except as set
forth in or contemplated in the Final
Memorandum (exclusive of any amendment or
supplement thereto)) and have paid all
taxes required to be paid by it and any
other assessment, fine or penalty levied
against it, to the extent that any of
the foregoing is due and payable, except
for any such assessment, fine or
penalty that is currently being contested
in good faith or as would not
reasonably be expected to have a Material
Adverse Effect and except as set forth
in or contemplated in the Final Memorandum
(exclusive of any amendment or
supplement thereto).
(mm) No labor problem or dispute with the employees of the Company
,
the Guarantors or any of their subsidiaries
exists or to the best of the
Company's knowledge, is threatened, except
as would not reasonably be expected
to have a Material Adverse Effect, and
except as set forth in or contemplated in
the Final Memorandum (exclusive of any
amendment or supplement thereto).
(nn) The Company, the Guarantors and each of their subsidiaries
are
insured by insurers of recognized financial
responsibility against such losses
and risks and in such amounts as are
prudent and customary in the businesses in
which they are engaged.
(oo) No subsidiary of the Parent is currently prohibited, directly
or
indirectly, from paying any dividends to
the Parent or the Company, from making
any other distribution on such subsidiary's
capital stock, from repaying to the
Parent or the Company any loans or advances
to such subsidiary from the Parent
or the Company or from transferring any of
such subsidiary's property or assets
to the Parent or the Company or any other
subsidiary of the
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Parent, except as described in or
contemplated in the Final Memorandum
(exclusive of any amendment or supplement
thereto).
(pp) The Company, the Guarantors and their respective
subsidiaries
possess all licenses, certificates, permits
and other authorizations issued by
the appropriate U.S. federal, state or
non-U.S. regulatory authorities necessary
to conduct their respective businesses, and
neither the Company, the Guarantors
nor any of their respective subsidiaries
have received any notice of proceedings
relating to the revocation or modification
of any such certificate,
authorization or permit which, singly or in
the aggregate, if the subject of an
unfavorable decision, ruling or finding,
would not reasonably be expected to
have a Material Adverse Effect, except as
set forth in or contemplated in the
Final Memorandum (exclusive of any
amendment or supplement thereto).
(qq) The Company, the Guarantors and each of their respective
subsidiaries maintain a system of internal
accounting controls sufficient to
provide reasonable assurance that (i)
transactions are executed in accordance
with management's general or specific
authorizations; (ii) transactions are
recorded as necessary to permit preparation
of financial statements in
conformity with generally accepted
accounting principles and to maintain asset
accountability; (iii) access to assets is
permitted only in accordance with
management's general or specific
authorization; and (iv) the recorded
accountability for assets is compared with
the existing assets at reasonable
intervals and appropriate action is taken
with respect to any differences.
(rr) The subsidiaries listed on Annex A attached hereto are the
only
"significant subsidiaries" of the Parent
(as defined in Rule l-02 of Regulation
S-X under the Act), based upon historical
financial information as of December
31, 2003.
(ss) The Company has not taken any action or omitted to take
any
action (such as issuing any press release
relating to any Securities without an
appropriate legend) which may result in the
loss by any of the Initial
Purchasers of the ability to rely on any
stabilization safe harbor provided by
the Financial Services Authority under the
Financial Services and Markets Act
2000 (the "FSMA"). The Company has been
informed of the guidance relating to
stabilization provided by the Financial
Services Authority, in particular in
Section MAR 2 Annex 2G of the Financial
Services Handbook.
(tt) The Parent and its subsidiaries own, possess, license or
otherwise have the right to use, all
material patents, trademarks, service
marks, trade names, copyrights, Internet
domain names (in each case including
all registrations and applications to
register same), inventions, trade secrets,
technology, know-how and other intellectual
property necessary for the conduct
of the Parent's business as now conducted
(collectively, the "INTELLECTUAL
PROPERTY"). Except as set forth in the
Final Memorandum, and except as would
not, individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect, (a) the Parent or one of
its subsidiaries owns, or has the right
to use, all the Intellectual Property free
and clear in all material respects of
all adverse claims, liens or other
encumbrances; (b) to the Company's knowledge,
there is no material infringement by third
parties of any such Intellectual
Property; (c) there is no pending or, to
the Company's knowledge, thr
