0.625% Convertible Senior Notes
due 2014
Goldman, Sachs
& Co.,
Deutsche Bank Securities Inc.
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Illumina, Inc., a
Delaware corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto
(the “ Purchasers ”) an aggregate of
$350,000,000 principal amount of its 0.625% Convertible Senior
Notes due 2014, convertible into shares of common stock, par value
$0.01 per share (“ Stock ”), of the Company (the
“ Firm Securities ”) and, at the election of the
Purchasers, to issue and sell to the Purchasers up to an aggregate
of $50,000,000 additional aggregate principal amount of such notes
(the “ Optional Securities ,” and together with
the Firm Securities the “ Securities ”), solely
to cover over-allotments.
1.
The Company represents and warrants to, and agrees with, each of
the Purchasers that:
(a) A
preliminary offering circular, dated February 12, 2007 (the
“ Preliminary Offering Circular ”) and an
offering circular, dated February 12, 2007 (the “
Offering Circular ”) have been prepared in connection
with the offering of the Securities and shares of the Stock
issuable upon conversion thereof. The Preliminary Offering
Circular, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(b)), is hereinafter
referred to as the “ Pricing Circular .” Any
reference to the Preliminary Offering Circular, the Pricing
Circular or the Offering Circular shall be deemed to refer to and
include all documents filed by the Company with the United States
Securities and Exchange Commission (the “ Commission
”) pursuant to Section 12, 13(a), 13(c), 14 or 15(d) of
the United States Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), on or prior to the date of
such circular and directly or indirectly incorporated by reference
into such
circular, and
any reference to the Preliminary Offering Circular or the Offering
Circular, as the case may be, as amended or supplemented, as of any
specified date after the date of such circular shall be deemed to
include (i) any documents filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of such circular and on or prior to
such specified date and (ii) any Additional Issuer Information
(as defined in Section 5(f)) furnished by the Company prior to
the completion of the distribution of the Securities; and all
documents filed under the Exchange Act and so deemed to be included
in the Preliminary Offering Circular, the Pricing Circular or the
Offering Circular, as the case may be, or any amendment or
supplement thereto are hereinafter called the “ Exchange
Act Reports .” The Exchange Act Reports, when they were
or are filed with the Commission or when they became effective, as
the case may be, conformed or will conform in all material respects
to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder; and
no such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on
Schedule II(a) hereof. The Preliminary Offering Circular or
the Offering Circular and any amendments or supplements thereto and
the Exchange Act Reports did not and will not, as of their
respective dates, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a Purchaser
through Goldman, Sachs & Co. expressly for use
therein;
(b) For the
purposes of this Agreement, the “Applicable Time” is
5:00 p.m. (Eastern time) on the date of this Agreement; the Pricing
Circular, the information set forth in Schedule III hereto and the
documents listed on Schedule II(b) hereto, taken together
(collectively, the “ Pricing Disclosure Package
”) as of the Applicable Time, did 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; and
each Company Supplemental Disclosure Document (as defined in
Section 6(a)(i)) listed on Schedule II(c), if any, hereto
does not conflict with the information contained in the Pricing
Circular or the Offering Circular, and each such Company
Supplemental Disclosure Document, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, did 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; provided, however, that the
representations and warranties made in this Section 1(b) shall not
apply to any statements or omissions made in any Company
Supplemental Disclosure Document or the Pricing Disclosure Package
in reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through Goldman, Sachs &
Co. expressly for use therein;
(c) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Pricing Circular any material loss
or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing
Circular; and, since the respective dates as of which information
is given in the Pricing Circular, there has not been any change in
the capital stock (other than upon the issuance and exercise of
options granted pursuant to the Company’s stock option and
purchase plans) or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or
affecting
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the general
affairs, management, financial position, stockholders’ equity
or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the
Pricing Circular;
(d) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, in each case except such as
described in the Pricing Circular or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such property and buildings
by the Company and its subsidiaries;
(e) The
Company has been duly incorporated and is validly existing as a
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 Pricing
Circular, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where failure to be so qualified in any such jurisdiction does not
and would not have a material adverse effect upon the assets,
business, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, or on the
consummation of any of the transactions contemplated hereby (a
“ Material Adverse Effect ”); and each
subsidiary of the Company has been duly incorporated or organized,
as the case may be, and is validly existing as a corporation or
other entity, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or organization, as the case
may be, except where the failure to be so incorporated, organized
and existing would not have a Material Adverse Effect;
(f) The
Company has an authorized capitalization as set forth in the
Pricing Circular, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; the shares of Stock initially
issuable upon conversion of the Securities have been duly and
validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Securities and
the Indenture (as defined below), will be duly and validly issued,
fully paid and non-assessable and will conform in all material
respects to the description of the Stock contained in the Pricing
Disclosure Package and the Offering Circular; and all of the issued
shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(g) The
Securities have been duly authorized and, when issued,
authenticated and delivered pursuant to this Agreement and the
Indenture, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the indenture
to be dated as of February 16, 2007 (the “
Indenture ”) between the Company and The Bank of New
York, as Trustee (the “ Trustee ”), under which
they are to be issued, which will be substantially in the form
previously delivered to you, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; the Indenture has been duly
authorized and, when
3
executed and
delivered by the Company and the Trustee, the Indenture will
constitute a valid and legally binding instrument, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Securities and the Indenture will conform in all material respects
to the descriptions thereof in the Pricing Disclosure Package and
the Offering Circular and will be in substantially the form
previously delivered to you;
(h) The
Registration Rights Agreement to be dated as of February 16,
2007 (the “ Registration Rights Agreement ”),
which will be substantially in the form previously delivered to
you, has been duly authorized, and as of the First Time of Delivery
(as defined herein), will have been duly executed and delivered by
the Company, and will constitute a valid and legally binding
instrument enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Registration Rights Agreement will conform in all material respects
to the descriptions thereof in the Pricing Disclosure Package and
the Offering Circular;
(i) The
consummation by the Company of the transactions contemplated by
this Agreement (including, without limitation, the use of the
proceeds from the sale of the Securities) will not violate or
result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(j) Prior to
the date hereof, neither the Company nor, to the best of the
Company’s knowledge, any of its affiliates has taken any
action which is designed to or which has constituted or which would
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Securities;
(k) (A) Except
as would not result in a Material Adverse Effect, the issue and
sale of the Securities and the compliance by the Company with all
of the provisions of the Securities, the Indenture, the
Registration Rights Agreement and this Agreement and the
consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; (B)
nor will such action result in (i) any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or (ii) except as would not result in a Material
Adverse Effect, a violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and (C) no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement , the Indenture or the
Registration Rights Agreement, except for the filing and
effectiveness of a registration statement by the Company with the
Commission pursuant to the United States Securities Act of 1933, as
amended (the “ Act ”) pursuant to the
Registration Rights Agreement, the qualification of the Indenture
under the United States Trust Indenture Act of 1939, as amended
(the “ Trust Indenture Act ”) upon the
effectiveness of such registration statement and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws or by the
National Association of Securities Dealers, Inc., in
connection
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with the
purchase and distribution of the Securities by the Purchasers and
except as where failure to obtain them or take such action would
not result in a Material Adverse Effect;
(l) Neither
the Company nor any of its subsidiaries is (A) in violation of
its Certificate of Incorporation or By-laws or (B) except as
does not and would not have a Material Adverse Effect, in default
in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(m) The
statements set forth in the Pricing Circular and the Offering
Circular under the caption “Description of Notes” and
“Description of Common Stock,” insofar as they purport
to constitute a summary of the terms of the Securities and the
Stock are an accurate summary thereof in all material respects; the
statements set forth in the Pricing Circular and the Offering
Circular under the captions “Description of Convertible Note
Hedge and Warrant Transactions,” “Certain United States
Federal Income Tax Considerations” and “Plan of
Distribution,” insofar as they purport to describe the
provisions of the laws and/or documents referred to therein, are
accurate in all material respects;
(n) Other
than as set forth in the Pricing Circular, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect;
and, except as set forth in the Pricing Circular, to the best of
the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(o) When the
Securities are issued and delivered pursuant to this Agreement, the
Securities will not be of the same class (within the meaning of
Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(p) The
Company is subject to Section 13 or 15(d) of the Exchange
Act;
(q) The
Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof will not
be, an “investment company,” as such term is defined in
the United States Investment Company Act of 1940, as amended (the
“ Investment Company Act ”);
(r) Neither
the Company nor any person acting on its or their behalf has
offered or sold the Securities by means of any general solicitation
or general advertising within the meaning of Rule 502(c) of
Regulation D under the Act;
(s) Within
the preceding six months, neither the Company nor any other person
acting on behalf of the Company has offered or sold to any person
any Securities, or any securities of the same or a similar class as
the Securities, other than Securities offered or sold to the
Purchasers hereunder. The Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in
Rule 902 of Regulation S under the Act) of any Securities
or any substantially similar security issued by the Company, within
six months subsequent to the date on which the distribution of the
Securities has been completed (as notified to
5
the Company by
Goldman, Sachs & Co.), is made under restrictions and other
circumstances reasonably designed not to affect the status of the
offer and sale of the Securities in the United States and to U.S.
persons contemplated by this Agreement as transactions exempt from
the registration provisions of the Act;
(t) The
Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision , to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. As of January 1, 2006, the
Company’s internal control over financial reporting was
effective; the Company believes that its internal control over
financial reporting is effective as of the date of this agreement;
and the Company is not aware of any material weaknesses in its
internal control over financial reporting;
(u) Since
January 1, 2006, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting;
(v) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective;
(w) Ernst
& Young LLP, which has audited certain financial statements of
the Company and its subsidiaries is an independent registered
public accounting firm as required by the Act and the rules and
regulations of the Commission thereunder;
(x) The
Company is conducting business in compliance with all applicable
statutes, rules, regulations, standards, guides and orders
administered or issued by any governmental or regulatory authority
in the jurisdictions in which it is conducting business, except as
does not and would not have a Material Adverse Effect;
(y) The
Company is not in violation of any statute, or any rule,
regulation, decision or order of any governmental agency or body or
any court 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 ”), does not
own or operate any real property which to its knowledge is
contaminated with any substance that is subject to any
Environmental Laws, is not to its knowledge liable for any off-site
disposal or contamination pursuant to any Environmental Laws, and
is not subject to any claim relating to any Environmental Laws,
which violation, contamination, liability or claim would have,
individually or in the aggregate, a Material Adverse Effect; and
the Company is not aware of any pending investigation which could
be reasonably likely to lead to such a claim; and
(z) Except as
described in the Pricing Circular, the Company owns or has licenses
or other rights to use any patents, patent licenses, trademarks,
trade names, service marks, service names,
6
copyrights and
other proprietary intellectual property rights (collectively,
“ Intellectual Property ”) necessary to conduct
its business in the manner in which it has been and is contemplated
to be conducted as described in the Offering Circular; to the
Company’s knowledge, such Intellectual Property is valid,
binding and enforceable and does not conflict with the rights of
others, except as described in the Pricing Circular and except for
such conflicts as would not have a Material Adverse Effect; the
Company or its assignor has duly and properly filed with the United
States Patent and Trademark Office the pending patent applications
referred to in the Offering Circular (the “ Patent
Applications ”), except for immaterial clerical errors or
technical defects; the information contained in the Pricing
Circular and Offering Circular concerning the Patent Applications
and Intellectual Property is accurate in all material respects;
and, except as described in the Pricing Circular, the Company has
not received any notice from any person of infringement of or
conflict with (and knows of no such infringement of or conflict
with) asserted rights of others with respect to any Intellectual
Property or any trade secrets, proprietary information, inventions,
know how, processes and procedures owned or used by or licensed to
the Company which, if determined adversely to the Company, would
have, individually or in the aggregate, a Material Adverse
Effect.
2.
Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Purchasers, and
each of the Purchasers agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 97.75% of the
principal amount thereof, the principal amount of Securities set
forth opposite the name of such Purchaser in Schedule I
hereto, and (b) in the event and to the extent that the
Purchasers shall exercise the election to purchase Optional
Securities as provided below, the Company agrees to issue and sell
to the Purchasers, and each of the Purchasers agrees to purchase
from the Company, at the same purchase price set forth in clause
(a) of this Section 2, that portion of the aggregate
principal amount of the Optional Securities as to which such
election shall have been exercised (to be adjusted by you so as to
eliminate fractions of $1,000) determined by multiplying such
aggregate principal amount of Optional Securities by a fraction,
the numerator of which is the maximum aggregate principal amount of
Optional Securities which such Purchaser is entitled to purchase as
set forth opposite the name of such Purchaser in Schedule I
hereto and the denominator of which is the maximum aggregate
principal amount of Optional Securities that all of the Purchasers
are entitled to purchase hereunder.
The Company hereby
grants to the Purchasers the right to purchase at their election up
to $50,000,000 aggregate principal amount of Optional Securities,
solely for the purpose of covering over-allotments, if any, in
connection with the offer and sale of the Firm Securities, at the
purchase price set forth in clause (a) of the first paragraph
of this Section 2. Any such election to purchase Optional
Securities may be exercised by written notice from you to the
Company, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate principal amount of
Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by Goldman
Sachs & Co., which shall in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless
Goldman Sachs & Co. and the Company otherwise agree in writing,
earlier than three or later than ten New York Business Days after
the date of such notice. For the purposes of this Agreement,
“ New York Business Day ” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in New York are generally authorized
or obligated by law or executive order to close.
3.
Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon
the terms and conditions set forth in this Agreement and
7
the Offering
Circular and each Purchaser hereby represents and warrants to, and
agrees with the Company that:
(a) It will
offer and sell the Securities only to persons who it reasonably
believes are “qualified institutional buyers” (“
QIBs ”) within the meaning of Rule 144A under the
Act in transactions meeting the requirements of
Rule 144A;
(b) It is an
“accredited investor” within the meaning of
Rule 501 of Regulation D under the Act; and
(c) It will
not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to
the methods described in Rule 502(c) of Regulation D under the
Act.
(a) The
Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“ DTC
”) or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the
purchase price therefor by wire transfer in Federal (same day)
funds, by causing DTC to credit the Securities to the account of
Goldman, Sachs & Co. at DTC. The Company will cause the
certificates representing the Securities, or a true copy thereof,
to be made available to Goldman, Sachs & Co. for checking at
least twenty-four hours prior to each Time of Delivery (as defined
below) at the offices of Dewey Ballantine LLP in New York, NY (the
“ Closing Location ”). The time and date of such
delivery and payment shall be, with respect to the Firm Securities,
9:30 a.m., New York City time, on February 16, 2007, or at
such other time and date as you and the Company may agree upon in
writing, and, with respect to the Optional Securities, 9:30 a.m.,
New York City time, on the date specified by you in the written
notice given by you of Goldman, Sachs & Co.’s election to
purchase the Optional Securities, or at such other time and date as
you and the Company may agree upon in writing. Such time and date
for delivery of the Firm Securities is herein called the “
First Time of Delivery ,” such time and date for
delivery of the Optional Securities, if not the First Time of
Delivery, is herein called an “ Optional Time of
Delivery ,” and each such time and date for delivery is
herein called a “ Time of Delivery .”
(b) The
documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including
the cross-receipt for the Securities and any additional documents
requested by the Purchasers pursuant to Section 8(k) hereof, will
be delivered at such time and date at the Closing Location, and the
Securities will be delivered through DTC, all at such Time of
Delivery. A meeting will be held at the Closing Location on the New
York Business Day next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant
to the preceding sentence will be available for review by the
parties hereto.
5.
The Company agrees with each of the Purchasers:
(a) To
prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be
disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
8
(b) Promptly
from time to time to take such action as you may reasonably request
to qualify the Securities and the shares of Stock issuable upon
conversion of the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation, file a general consent to service
of process, or take any action that would subject it to taxation,
in any jurisdiction;
(c) To
furnish the Purchasers with written and electronic copies of the
Offering Circular in such quantities as you may from time to time
reasonably request, and if, at any time prior to the expiration of
nine months after the date of the Offering Circular, any event
shall have occurred as a result of which the Offering Circular 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 when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or
supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and
to any dealer in securities as many written and electronic copies
as you may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which
will correct such statement or omission or effect such
compliance;
(d) During
the period beginning from the date hereof and continuing until the
date 90 days after the date of the Offering Circular, not to
offer, sell contract to sell or otherwise dispose of, except as
provided hereunder, the economic interest in any securities of the
Company that are substantially similar to the Securities or the
Stock, including but not limited to any securities that are
convertible into or exercisable or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities without your written consent (other than
(i) upon the conversion, exchange or exercise of convertible,
exchangeable or exercisable securities outstanding as of the date
of this Agreement or (ii) pursuant to employee stock option or
stock purchase plans existing on the date of this
Agreement;
(e) Not to be
or become, at any time prior to the expiration of two years after
the last Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(f) At any
time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of
Securities and prospective purchasers of securities information
(the “ Additional Issuer Information ”)
satisfying the requirements of subsection (d)(4)(i) of
Rule 144A under the Act;
(g) If
requested by you, to use its best efforts to cause the Securities
to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) During
the period of two years after the last Time of Delivery, the
Company will not, and will use its reasonable best efforts not to
permit any of its “affiliates” (as defined in
Rule 144 under the Act) to, resell any of the Securities which
constitute “restricted securities” under Rule 144 that
have been reacquired by any of them;
9
(i) To use
the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Pricing
Circular under the caption “Use of
Proceeds”;
(j) To
reserve and keep available at all times, free of preemptive rights,
shares of Stock for the purpose of enabling the Company to satisfy
any obligations to issue shares of its Stock upon conversion of the
Securities; and
(k) To use
its best efforts to list for quotation the shares of Stock issuable
upon conversion of the Securities on the Nasdaq Stock Market
Inc.’s Global Market (“ NASDAQ
”).
(i) The Company
represents and agrees that, without the prior consent of Goldman,
Sachs & Co., it has not made and will not make any offer
relating to the Securities that, if the offering of the Securities
contemplated by this Agreement were conducted as a public offering
pursuant to a registration statement filed under the Act with the
Commission, would constitute an “issuer free writing
prospectus,” as defined in Rule 433 under the Act (any
such offer is hereinafter referred to as a “ Company
Supplemental Disclosure Document ”);
(ii) each
Purchaser represents and agrees that, without the prior consent of
the Company and Goldman, Sachs & Co., other than one or more
term sheets relating to the Securities containing customary
information, it has not made and will not make any offer relating
to the Securities that, if the offering of the Securities
contemplated by this Agreement were conducted as a public offering
pursuant to a registration statement filed under the Act with the
Commission, would constitute a “free writing
prospectus,” as defined in Rule 405 under the Act;
and
(iii) each Company
Supplemental Disclosure Document, if any, the use of which has been
consented to by the Company and Goldman, Sachs & Co., is listed
on Schedule II(b) and II(c) hereto;
7.
The Company covenants and agrees with the several Purchasers that
the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the
issue of the Securities and the shares of Stock issuable upon
conversion of the Securities and all other expenses in connection
with the preparation, printing, reproduction and filing of the
Preliminary Offering Circular and the Offering Circular and any
amendments and supplements thereto and the mailing and delivering
of copies thereof to the Purchasers and dealers; (ii) the cost
of printing or producing any Blue Sky Memorandum or closing
documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities and the shares of Stock
issuable upon conversion of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Purchasers in connection with such qualification and in connection
with any Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees
of the Trustee and any agent of the Trustee in connection with the
Indenture and the Securities;
10
(vii) any
cost incurred in connection with the designation of the Securities
for trading in PORTAL and the listing of the shares of Stock
issuable upon conversion of the Securities; and (viii) all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the
Purchasers will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any
offers they may make.
8.
The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and
as of each Time of Delivery, true and correct, the condition that
the Company shall have performed all of its obligations required to
be performed prior to such Time of Delivery and the following
additional conditions:
(a) Sullivan
& Cromwell LLP, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to such matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters;
(b) Dewey
Ballantine LLP, counsel for the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, in the form
set forth in Annex II hereto.
(c) On the
date of the execution of this Agreement, on the date of the
Offering Circular and also at each Time of Delivery, Ernst &
Young LLP, separately with respect to the Company and Solexa, Inc.,
a Delaware corporation and wholly owned subsidiary of the Company
(“ Solexa ”), shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof,
in form and substance reasonably satisfactory to you;
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