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Exhibit 10.1
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
$150,000,000 AGGREGATE PRINCIPAL AMOUNT
POLYMEDICA CORPORATION
1.00% CONVERTIBLE SUBORDINATED NOTES
DUE SEPTEMBER 15, 2011
PURCHASE AGREEMENT
DATED SEPTEMBER 13, 2006
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PURCHASE
AGREEMENT
September 13, 2006
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
As Representatives of the several Initial Purchasers
c/o DEUTSCHE BANK SECURITIES INC.
60 Wall Street
New York, New York
10005
Ladies and Gentlemen:
PolyMedica
Corporation, a Massachusetts corporation (the "Company"),
proposes to issue and sell to the several purchasers named in
Schedule A (the
"Initial Purchasers") $150,000,000 in aggregate principal amount of
its 1.00%
Convertible Subordinated Notes due September 15, 2011 (the "Firm
Notes"). In
addition, the Company has granted to the Initial Purchasers an
option to
purchase up to an additional $30,000,000 in aggregate principal
amount of its
1.00% Convertible Subordinated Notes due September 15, 2011 (the
"Optional
Notes" and, together with the Firm Notes, the "Notes"). Deutsche
Bank Securities
Inc. ("DBS") and Banc of America Securities LLC ("BAS") have agreed
to act as
representatives of the several Initial Purchasers (in such
capacity, the
"Representatives") in connection with the offering and sale of the
Notes.
The Notes
will be convertible on the terms, and subject to the
conditions,
set forth in the Indenture (as defined below). As used herein,
"Conversion
Shares" means the shares of common stock, par value $0.01 per
share, of the
Company (the "Common Stock") to be received by the holders of the
Notes upon
conversion of the Notes pursuant to the terms of the Notes. In
connection with
the offering of the Notes, the Company is entering into a
convertible note hedge
and warrant transaction with Deutsche Bank AG and Bank of America
pursuant to
confirmation letters dated September 13, 2006, to the form of the
2002 ISDA
Master Agreement (the "Convertible Note Hedge and Warrant
Transaction
Documentation").
The Notes
will be offered and sold to the Initial Purchasers without
being
registered under the Securities Act of 1933, as amended, and the
rules and
regulations of the Securities and Exchange Commission (the
"Commission")
thereunder (the "Securities Act"), in reliance upon an exemption
therefrom.
Holders of
the Notes (including the Initial Purchasers and their direct
and indirect transferees) will be entitled to the benefits of a
Resale
Registration Rights Agreement, dated the Closing Date, between the
Company and
the Initial Purchasers (the "Registration Rights Agreement"),
pursuant to which
the Company will agree to file or have on file with the Commission
a shelf
registration statement pursuant to Rule 415 under the Securities
Act (the
"Registration Statement") covering the resale of the Notes and the
Conversion
Shares. This Agreement, the Indenture, the Notes, the Registration
Rights
Agreement and the Convertible Note Hedge and Warrant Transaction
Documentation
are referred to herein collectively as the "Operative
Documents."
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The
Company understands that the Initial Purchasers propose to make
an
offering of the Notes on the terms and in the manner set forth
herein and in the
Disclosure Package (as defined below), including the Preliminary
Offering
Memorandum (as defined below), and the Final Offering Memorandum
(as defined
below) and agrees that the Initial Purchasers may resell, subject
to the
conditions set forth herein, all or a portion of the Notes to
purchasers (the
"Subsequent Purchasers") at any time after the date of this
Agreement.
The
Company has prepared an offering memorandum, dated the date
hereof,
setting forth information concerning the Company, the Notes, the
Registration
Rights Agreement and the Common Stock, in form and substance
reasonably
satisfactory to the Initial Purchasers. As used in this Agreement,
"Offering
Memorandum" means, collectively, the Preliminary Offering
Memorandum dated as of
September 12, 2006 (the "Preliminary Offering Memorandum") and the
Offering
Memorandum dated the date hereof (the "Final Offering Memorandum"),
each as then
amended or supplemented by the Company. As used herein, each of the
terms
"Disclosure Package", "Offering Memorandum", "Preliminary Offering
Memorandum"
and "Final Offering Memorandum" shall include in each case the
documents
incorporated or deemed to be incorporated by reference therein.
The
Company hereby confirms its agreements with the Initial Purchasers
as
follows:
SECTION 1.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The
Company hereby represents, warrants and covenants to each
Initial
Purchaser as follows:
(a) No
Registration. Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 6 and
their compliance
with the agreements set forth therein, compliance by the Initial
Purchasers with
the offering and transfer procedures described in the Disclosure
Package and the
Final Offering Memorandum, the accuracy of the representations and
warranties
made in accordance with the Disclosure Package and the Final
Offering Memorandum
by the investors to whom the Initial Purchasers initially resell
the Notes and
receipt by the investors to whom the Initial Purchasers initially
resell the
Notes of copies of the Disclosure Package and the Final Offering
Memorandum
prior to the effectiveness of such resale, it is not necessary, in
connection
with the issuance and sale of the Notes to the Initial Purchasers,
the offer,
resale and delivery of the Notes by the Initial Purchasers and the
conversion of
the Notes into Conversion Shares, in each case in the manner
contemplated by
this Agreement, the Indenture, the Disclosure Package and the Final
Offering
Memorandum, to register the Notes or the Conversion Shares under
the Securities
Act or to qualify the Indenture under the Trust Indenture Act of
1939, as
amended (the "Trust Indenture Act").
(b) No
Integration. None of the Company or any of its subsidiaries
has,
directly or through any agent, sold, offered for sale, solicited
offers to buy
or otherwise negotiated in respect of, any "security" (as defined
in the
Securities Act) that is or will be integrated with the sale of the
Notes or the
Conversion Shares in a manner that would require registration under
the
Securities Act of the Notes or the Conversion Shares.
(c) Rule
144A. No securities of the same class (within the meaning of
Rule
144A(d)(3) under the Securities Act) as the Notes are listed on any
national
securities exchange registered under Section 6 of the Securities
Exchange Act of
1934, as amended (the "Exchange Act"), or quoted on an automated
inter-dealer
quotation system.
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(d)
Exclusive Agreement. The Company has not paid or agreed to pay to
any
person any compensation for soliciting another person to purchase
any securities
of the Company (except as contemplated in this Agreement).
(e) Offering
Memoranda. The Company hereby confirms that it has authorized
the use of the Disclosure Package, including the Preliminary
Offering
Memorandum, and the Final Offering Memorandum in connection with
the offer and
sale of the Notes by the Initial Purchasers. Each document, if any,
filed or to
be filed pursuant to the Exchange Act and incorporated by reference
in the
Disclosure Package or the Final Offering Memorandum complied or
will comply when
it is filed in all material respects with the Exchange Act and the
rules and
regulations of the Commission thereunder. The Preliminary Offering
Memorandum,
at the date thereof, did not contain any untrue statement of a
material fact or
omit to state a material fact necessary in order to make the
statements therein,
in the light of the circumstances under which they were made, not
misleading. At
the date of this Agreement, the Closing Date and on any Subsequent
Closing Date,
the Final Offering Memorandum did not and will not (and any
amendment or
supplement thereto, at the date thereof, at the Closing Date and on
any
Subsequent Closing Date, will not) contain 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 that the Company makes no
representation or
warranty as to information contained in or omitted from the
Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or
supplement
thereto, in reliance upon and in conformity with written
information furnished
to the Company by or on the behalf of the Initial Purchasers
specifically for
inclusion therein, it being understood and agreed that the only
such information
furnished by or on the behalf of the Initial Purchasers consists of
the
information described as such in Section 8 hereof.
(f)
Disclosure Package. The term "Disclosure Package" shall mean (i)
the
Preliminary Offering Memorandum, as amended or supplemented at the
Applicable
Time, (ii) the Final Term Sheet (as defined herein) and (iii) any
other writings
that the parties expressly agree in writing to treat as part of the
Disclosure
Package ("Issuer Written Information"). The Disclosure Package as
of 8:00 pm
(Eastern time) on the date hereof (the "Applicable Time") did not
contain any
untrue statement of a material fact or omit to state any material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading. The preceding sentence does
not apply to
statements in or omissions from the Disclosure Package in reliance
upon and in
conformity with written information furnished to the Company by any
Initial
Purchaser through the Representatives specifically for use therein,
it being
understood and agreed that the only such information furnished by
or on behalf
of any Underwriter consists of the information described as such in
Section 8
hereof.
(g)
Statements in Offering Memorandum. The statements in the
Disclosure
Package and the Final Offering Memorandum under the headings
"Material U.S.
Federal Income Tax Considerations", "Risk Factors -- We are subject
to a
corporate integrity agreement" and "Risk Factors -- We are
currently involved in
litigation and could experience reduced net income if this
litigation is not
resolved in our favor"; the statements in the Disclosure Package
and the
Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 2006
under the headings "Business -- Government Regulation and
Reimbursement",
"Business -- State Pharmacy Regulation", "Business -- Other
Regulation",
"Business -- Compliance and Regulatory Affairs Department",
"Factors Affecting
Future Operating Results -- We are subject to a corporate integrity
agreement",
"Legal Proceedings" and "Management's Discussion and Analysis of
Financial
Condition and Results of Operations -- Liquidity and Capital
Resources --
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Commitments -- Contingencies -- Class Action Lawsuit"; and the
statements in the
Disclosure Package and the Company's Quarterly Report on Form 10-Q
for the
period ended June 30, 2006 under the headings "Other Information --
Risk Factors
-- We are subject to a corporate integrity agreement" and "Other
Information --
Risk Factors -- We are currently involved in litigation and could
experience
reduced net income if this litigation is not resolved in our
favor", insofar as
such statements summarize legal matters, agreements, documents or
proceedings
discussed therein, are accurate and fair summaries of such legal
matters,
agreements, documents or proceedings.
(h)
Offering Materials Furnished to Initial Purchasers. The Company
has
delivered to the Representatives copies of the materials contained
in the
Disclosure Package and the Final Offering Memorandum, each as
amended or
supplemented, in such quantities and at such places as the
Representatives have
reasonably requested for each of the Initial Purchasers.
(i)
Authorization of the Purchase Agreement. The execution, delivery
and
performance of this Agreement by the Company have been duly
authorized by the
Company. This Agreement has been duly and validly executed and
delivered by the
Company.
(j)
Authorization of the Indenture. The execution, delivery and
performance of the Indenture by the Company have been duly
authorized by the
Company and, upon the effectiveness of the Registration Statement,
will be
qualified under the Trust Indenture Act; on the Closing Date, the
Indenture will
have been duly and validly executed and delivered by the Company
and, assuming
due authorization, execution and delivery thereof by the Trustee,
will
constitute a legally valid and binding agreement of the Company
enforceable
against the Company in accordance with its terms, except as
enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization,
moratorium or other similar laws relating to or affecting the
rights and
remedies of creditors or by general equitable principles; and the
Indenture
conforms in all material respects to the description thereof
contained in the
Disclosure Package and the Final Offering Memorandum.
(k)
Authorization of the Notes. The execution, delivery and performance
of
the Notes by the Company have been duly authorized by the Company;
when the
Notes are executed, authenticated and issued in accordance with the
terms of the
Indenture and delivered to and paid for by the Initial Purchasers
pursuant to
this Agreement on the Closing Date or any Subsequent Closing Date,
as the case
may be (assuming due authentication of the Notes by the Trustee),
such Notes
will constitute legally valid and binding obligations of the
Company, entitled
to the benefits of the Indenture and enforceable against the
Company in
accordance with their terms, except as enforcement thereof may be
limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by
general equitable principles; and the Notes will conform in all
material
respects to the description thereof contained in the Disclosure
Package and the
Final Offering Memorandum.
(l)
Authorization of the Conversion Shares. The Notes to be delivered
on
the Closing Date or on any Subsequent Closing Date are convertible
into the
Conversion Shares in accordance with the Indenture. The Conversion
Shares have
been duly authorized and reserved and, when issued upon conversion
of the Notes
in accordance with the terms of the Notes, will be validly issued,
fully paid
and non-assessable, and the issuance of such shares will not be
subject to any
preemptive or similar rights.
(m)
Authorization of the Registration Rights Agreement. The
execution,
delivery and performance of the Registration Rights Agreement by
the Company
have been duly authorized.
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On the Closing Date, the Registration Rights Agreement will have
been duly and
validly executed and delivered by the Company.
(n)
Authorization of the Convertible Note Hedge and Warrant
Transaction
Documentation. The execution, delivery and performance of the
Convertible Note
Hedge and Warrant Transaction Documentation by the Company have
been duly
authorized. The Convertible Note Hedge and Warrant Transaction
Documentation has
been duly and validly executed and delivered by the Company.
(o) No
Material Adverse Change. Except as otherwise disclosed in the
Disclosure Package and the Final Offering Memorandum (exclusive of
any
amendments or supplements thereto subsequent to the date of this
Agreement),
subsequent to the date of the most recent financial statements
included or
incorporated by reference in the Disclosure Package: (i) there has
been no
material adverse change, or any development that could reasonably
be expected to
result in a material adverse change, in the condition, financial or
otherwise,
or in the earnings, business, properties, operations or prospects,
whether or
not arising from transactions in the ordinary course of business,
of the Company
and its subsidiaries, considered as one entity (a "Material Adverse
Change");
(ii) the Company and its subsidiaries, considered as one entity,
have not
incurred any material liability or obligation, indirect, direct or
contingent,
nor entered into any material transaction or agreement that would
need to be
publicly disclosed or filed as an exhibit pursuant to the Exchange
Act; and
(iii) there has been no dividend or distribution of any kind
declared, paid or
made by the Company or, except for dividends paid to the Company or
other
subsidiaries, any of its subsidiaries on any class of capital stock
or
repurchase or redemption by the Company or any of its subsidiaries
of any class
of capital stock.
(p) Independent
Accountants. PricewaterhouseCoopers LLP, who have
expressed their opinion with respect to certain audited
consolidated financial
statements (which term as used in this Agreement includes the
related notes
thereto) and supporting schedule included in the Disclosure Package
and the
Final Offering Memorandum, are independent registered public
accountants with
respect to the Company as required by the Securities Act and the
Exchange Act
and the applicable published rules and regulations thereunder.
(q)
Preparation of the Financial Statements. The financial
statements
included in the Disclosure Package and the Final Offering
Memorandum present
fairly the consolidated financial position of the Company and its
consolidated
subsidiaries as of and at the dates indicated and the results of
their
operations and cash flows for the periods specified. Such financial
statements
comply as to form with the applicable accounting requirements of
Regulation S-X
and have been prepared in conformity with generally accepted
accounting
principles applied on a consistent basis throughout the periods
involved, except
as may be expressly stated in the related notes thereto. The
financial data set
forth in the Disclosure Package and the Final Offering Memorandum
under the
captions "Summary -- Summary Consolidated Financial Data",
"Capitalization" and
"Ratio of Earnings to Fixed Charges" and the financial data set
forth in the
Disclosure Package and the Company's Annual Report on Form 10-K for
the fiscal
year ended March 31, 2006 under the heading "Selected Consolidated
Financial
Data" fairly present the information set forth therein on a basis
consistent
with that of the audited financial statements contained in the
Disclosure
Package and the Final Offering Memorandum. The Company's ratios of
earnings to
fixed charges set forth in the Disclosure Package and the Final
Offering
Memorandum have been calculated in compliance with Item 503(d) of
Regulation S-K
under the Securities Act.
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(r)
Incorporation and Good Standing of the Company and its
Subsidiaries.
Each of the Company and its subsidiaries has been duly incorporated
or formed,
as the case may be, and is validly existing as a corporation or
limited
liability company, as the case may be, in good standing under the
laws of the
jurisdiction of its incorporation or formation, as the case may be,
and has
corporate or limited liability, as the case may be, power and
authority to own
or lease, as the case may be, and operate its properties and to
conduct its
business as described in the Disclosure Package and the Final
Offering
Memorandum and, in the case of the Company, to enter into and
perform its
obligations under this Agreement. Each of the Company and each
subsidiary is
duly qualified as a foreign corporation or limited liability
company, as the
case may be, to transact business and is in good standing in each
jurisdiction
in which such qualification is required, whether by reason of the
ownership or
leasing of property or the conduct of business, except for such
jurisdictions
where the failure to so qualify or to be in good standing would
not,
individually or in the aggregate, reasonably be expected to result
in a material
adverse effect on the condition, financial or otherwise, or on the
earnings,
business, properties, operations or prospects, whether or not
arising from
transactions in the ordinary course of business, of the Company and
its
subsidiaries, considered as one entity (a "Material Adverse
Effect"). All of the
issued and outstanding shares of capital stock or membership
interests, as the
case may be, of each subsidiary have been duly authorized and
validly issued,
are fully paid and nonassessable and are owned by the Company,
directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge,
lien, encumbrance or claim, except for (i) any security interest,
claim, lien or
encumbrance created by or under, or relating to, that certain
credit agreement,
dated as of April 12, 2005, among the Company, the lenders from
time to time
parties thereto and Bank of America, N.A., as administrative agent,
as
supplemented, amended and modified by the Credit Agreement
Supplement and
Amendment, dated as of May 24, 2005, Amendment and Limited Waiver
No. 2, dated
as of November 18, 2005, the Consent, dated as of February 8, 2006,
the Credit
Agreement Supplement and Amendment No. 3, dated as of March 30,
2006, and the
Consent and Amendment No. 4, dated as of September 12, 2006
(collectively, the
"Credit Agreement"), including any notes, collateral documents,
letters of
credit and documentation and guarantees and any appendices,
exhibits, schedules
to any of the preceding and (ii) any liens with respect to the
payment of taxes,
assessments or governmental charges in each case that are not yet
due or that
are being contested in good faith by appropriate proceedings and
with respect to
which adequate reserves or other appropriate provisions are being
maintained to
the extent required by generally accepted accounting principles.
The Company
does not own or control, directly or indirectly, any corporation,
association or
other entity other than the subsidiaries listed in Exhibit 21.1 to
the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 2006
(excluding
those subsidiaries that may be omitted from such list pursuant to
Form 10-K).
(s)
Capitalization and Other Capital Stock Matters. The authorized,
issued
and outstanding capital stock of the Company is as set forth in the
Disclosure
Package and the Final Offering Memorandum under the caption
"Capitalization"
(other than for subsequent issuances, if any, pursuant to employee
benefit plans
described in the Disclosure Package and the Final Offering
Memorandum or upon
exercise of outstanding options or warrants described in the
Disclosure Package
and the Final Offering Memorandum, as the case may be). The Common
Stock
(including the Conversion Shares) conforms in all material respects
to the
description thereof contained in the Disclosure Package and the
Final Offering
Memorandum. All of the issued and outstanding shares of Common
Stock have been
duly authorized and validly issued, are fully paid and
nonassessable and have
been issued in compliance with federal and state securities laws.
None of the
outstanding shares of Common Stock were issued in violation of any
preemptive
rights, rights of first refusal or other similar rights to
subscribe for or
purchase securities of the Company. There are no authorized or
outstanding
options, warrants, preemptive
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rights, rights of first refusal or other rights to purchase, or
equity or debt
securities convertible into or exchangeable or exercisable for, any
capital
stock of the Company or any of its subsidiaries other than those
described in
the Disclosure Package and the Final Offering Memorandum. The
description of the
Company's stock option, stock bonus and other stock plans or
arrangements, and
the options or other rights granted thereunder, set forth in the
Disclosure
Package and the Final Offering Memorandum accurately and fairly
presents and
summarizes such plans, arrangements, options and rights.
(t)
Non-Contravention of Existing Instruments; No Further
Authorizations
or Approvals Required. Neither the Company nor any of its
subsidiaries (i) is in
violation of its charter, by-laws or other organizational
documents, (ii) is
(or, with the giving of notice or lapse of time, would be) in
default
("Default") under any indenture, mortgage, loan or credit
agreement, note,
contract, franchise, lease or other instrument to which the Company
or any of
its subsidiaries is a party or by which it or any of them may be
bound
(including, without limitation, the Credit Agreement) or to which
any of the
property or assets of the Company or any of its subsidiaries is
subject (each,
an "Existing Instrument"), or (iii) is in violation of 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 or such subsidiary or any of its
properties, as
applicable, except with respect to clauses (ii) and (iii) above
only, for such
Defaults as would not, individually or in the aggregate, have a
Material Adverse
Effect.
The
Company's execution, delivery and performance of the Operative
Documents and consummation of the transactions contemplated thereby
(i) have
been duly authorized by all necessary corporate action and will not
result in
any violation of the charter, by-laws or other organizational
documents of the
Company or any subsidiary, (ii) will not conflict with or
constitute a breach
of, or Default under, or result in the creation or imposition of
any lien,
charge or encumbrance upon any property or assets of the Company or
any of its
subsidiaries pursuant to, or require the consent of any other party
to, any
Existing Instrument and (iii) will not result in any violation of
any statute,
law, rule, regulation, judgment, order or decree applicable to the
Company or
any of its subsidiaries of any court, regulatory body,
administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the
Company or any of its subsidiaries or any of its or their
properties, except
with respect to clause (ii) above only, for such Defaults as would
not,
individually or in the aggregate, have a Material Adverse
Effect.
No
consent, approval, authorization or other order of, or registration
or
filing with, any court or other governmental or regulatory
authority or agency
is required for the Company's execution, delivery and performance
of the
Operative Documents and consummation of the transactions
contemplated thereby,
except (i) with respect to the transactions contemplated by the
Registration
Rights Agreement, as may be required under the federal and state
securities
laws, the Trust Indenture Act and the rules and regulations
promulgated
thereunder and (ii) such as have been obtained or made by the
Company and are in
full force and effect.
(u) No
Stamp or Transfer Taxes. 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
issuance or
sale by the Company of the Notes or upon the issuance of Common
Stock upon the
conversion thereof.
(v) No
Material Actions or Proceedings. Except as otherwise disclosed
in
the Disclosure Package and the Final Offering Memorandum, there are
no legal or
governmental actions, suits or proceedings pending or, to the best
of the
Company's knowledge, threatened (i) against or
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affecting the Company or any of its subsidiaries, (ii) which has as
the subject
thereof any officer or director of, or property owned or leased by,
the Company
or any of its subsidiaries or (iii) relating to environmental or
discrimination
matters, where in any such case (A) there is a reasonable
possibility that such
action, suit or proceeding might be determined adversely to the
Company or such
subsidiary and (B) any such action, suit or proceeding, if so
determined
adversely, would reasonably be expected to have a Material Adverse
Effect or
adversely affect the consummation of the transactions contemplated
by this
Agreement.
(w) Labor
Matters. No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the
Company's
knowledge, is threatened or imminent, and the Company is not aware
of any
existing or imminent labor disturbance by the employees of any of
its or its
subsidiaries' principal suppliers, contractors or customers, that
could have a
Material Adverse Effect.
(x)
Intellectual Property Rights. The Company and its subsidiaries
own,
possess, license or have other rights to use, on reasonable terms,
all patents,
patent applications, trade and service marks, trade and service
mark
registrations, trade names, copyrights, licenses, inventions, trade
secrets,
technology, know-how and other intellectual property (collectively,
the
"Intellectual Property") necessary for the conduct of the Company's
business as
now conducted or as proposed in the Disclosure Package and the
Final Offering
Memorandum to be conducted, except where the failure to so own,
possess, license
or have other rights to use the Intellectual Property would not
reasonably be
expected to have a Material Adverse Effect. Except as set forth in
the
Disclosure Package and the Final Offering Memorandum, (a) no party
has been
granted an exclusive license to use any portion of such
Intellectual Property
owned by the Company; (b) there is no material infringement by
third parties of
any such Intellectual Property owned by or exclusively licensed to
the Company;
(c) there is no pending or, to the best of the Company's knowledge,
threatened
action, suit, proceeding or claim by others challenging the
Company's rights in
or to any material Intellectual Property, and the Company is
unaware of any
facts which would form a reasonable basis for any such claim; (d)
there is no
pending or, to the best of the Company's knowledge, threatened
action, suit,
proceeding or claim by others challenging the validity or scope of
any such
Intellectual Property, and the Company is unaware of any facts
which would form
a reasonable basis for any such claim; and (e) there is no pending
or, to the
best of the Company's knowledge, threatened action, suit,
proceeding or claim by
others that the Company's business as now conducted infringes or
otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary
rights of others, and the Company is unaware of any other fact
which would form
a reasonable basis for any such claim.
(y) All
Necessary Permits, etc. The Company and each subsidiary possess
such valid and current licenses, certificates, authorizations or
permits issued
by the appropriate state, federal or foreign regulatory agencies or
bodies
necessary to conduct their respective businesses as now operated by
them, and
neither the Company nor any subsidiary has received any notice of
proceedings
relating to the revocation or modification of, or non-compliance
with, any such
certificate, authorization or permit which, singly or in the
aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a
Material
Adverse Effect.
(z) Title
to Properties. The Company and each of its subsidiaries has
good
and marketable title to all the properties and assets reflected as
owned in the
financial statements included in the Disclosure Package and the
Final Offering
Memorandum, in each case free and clear of any security interests,
mortgages,
liens, encumbrances, equities, claims and other defects, except for
(i) any
security interest, mortgage, lien or encumbrance created by or
under, or
relating to, the Credit Agreement, including any notes, collateral
documents,
letters of credit and
8
<PAGE>
documentation and guarantees and any appendices, exhibits,
schedules to any of
the preceding, (ii) any liens with respect to the payment of taxes,
assessments
or governmental charges in each case that are not yet due or that
are being
contested in good faith by appropriate proceedings and with respect
to which
adequate reserves or other appropriate provisions are being
maintained to the
extent required by generally accepted accounting principles and
(iii) such as do
not, singly or in the aggregate, materially and adversely affect
the value of
such property and do not, singly or in the aggregate, materially
interfere with
the use made or proposed to be made of such property by the Company
or such
subsidiary. The real property, improvements, equipment and personal
property
held under lease by the Company or any subsidiary are held under
valid and
enforceable leases, with such exceptions as are not material and do
not, singly
or in the aggregate, materially interfere with the use made or
proposed to be
made of such real property, improvements, equipment or personal
property by the
Company or such subsidiary.
(aa) Tax
Law Compliance. The Company and its consolidated subsidiaries
have filed all necessary federal, state, local and foreign income
and franchise
tax returns in a timely manner (except in any case in which the
failure to so
file would not have a Material Adverse Effect) and have paid or
made adequate
reserves for all taxes required to be paid by any of them and, if
due and
payable, any related or similar assessment, fine or penalty levied
against any
of them, except for any taxes, assessments, fines or penalties as
may be being
contested in good faith and by appropriate proceedings, or as would
not have a
Material Adverse Effect. The Company has made appropriate
provisions in the
financial statements included in the Disclosure Package and the
Final Offering
Memorandum in respect of all federal, state and foreign income and
franchise
taxes for all current or prior periods as to which the tax
liability of the
Company or any of its consolidated subsidiaries has not been
finally determined.
(bb)
Company Not an "Investment Company". The Company is not, and,
after
receipt of payment for the Notes and application of the proceeds as
described
under "Use of Proceeds" in the Disclosure Package and the Final
Offering
Memorandum will not be, required to register as an "investment
company" within
the meaning of the Investment Company Act of 1940, as amended (the
"Investment
Company Act") and will conduct its business in a manner so that it
will not
become subject to the Investment Company Act.
(cc)
Compliance with Reporting Requirements. The Company is subject to
and
in full compliance with the reporting requirements of Section 13 or
Section
15(d) of the Exchange Act.
(dd)
Insurance. Each of the Company and its subsidiaries are insured
by
recognized and, to the best of Company's knowledge, financially
sound and
reputable institutions with policies in such amounts and with such
deductibles
and covering such risks as are generally deemed adequate and
customary for the
businesses in which they are currently engaged including, but not
limited to,
policies covering real and personal property owned or leased by the
Company and
its subsidiaries against theft, damage, destruction, acts of
terrorism or
vandalism and earthquakes. All policies of insurance insuring the
Company or any
of its subsidiaries or their respective material existing
businesses, assets,
employees, officers and directors are in full force and effect; the
Company and
its subsidiaries are in compliance with the terms of such policies
and
instruments in all material respects; and there are no material
claims by the
Company or any of its subsidiaries under any such policy or
instrument as to
which any insurance company is denying liability or defending under
a
reservation of rights clause; and neither the Company nor, to the
best of
Company's knowledge (with such knowledge qualification applying
only to those
subsidiaries that the Company has acquired since April 1, 2005),
any such
subsidiary has been refused any insurance coverage sought or
applied for since
April 1, 2005. The Company has no reason to believe that it or any
subsidiary
will not be able (i) to renew its existing insurance
9
<PAGE>
coverage as and when such policies expire or (ii) to obtain
comparable coverage
from similar institutions as may be necessary or appropriate to
conduct its
business as now conducted and at a cost that would not have a
Material Adverse
Effect.
(ee) No
Restriction on Distributions. No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the
Company, from making any other distribution on such subsidiary's
capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the
Company or from transferring any of such subsidiary's property or
assets to the
Company or any other subsidiary of the Company, except as described
in or
contemplated by the Disclosure Package and the Final Offering
Memorandum.
(ff) No
Price Stabilization or Manipulation. The Company has not taken
and
will not take, directly or indirectly, any action designed to or
that might be
reasonably expected to cause or result in stabilization or
manipulation of the
price of any security of the Company to facilitate the sale or
resale of the
Notes. The Company acknowledges that the Initial Purchasers may
engage in
passive market making transactions in the Common Stock on The
Nasdaq Global
Select Market in accordance with Regulation M under the Exchange
Act.
(gg)
Related Party Transactions. There are no material business
relationships or related party transactions involving the Company
or any
subsidiary or any other person that have not been described in the
Disclosure
Package or the Final Offering Memorandum.
(hh) No
General Solicitation. None of the Company or any of its
affiliates
(as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation
D")), has, directly or through an agent (provided that the Company
makes no
representation with respect to the actions of the Initial
Purchasers or any of
their affiliates), engaged in any form of general solicitation or
general
advertising (as those terms are used in Regulation D) in connection
with the
offering of the Notes or in any manner involving a public offering
within the
meaning of Section 4(2) of the Securities Act in connection with
the offering of
the Notes; the Company has not entered into any contractual
arrangement with
respect to the distribution of the Notes or the Conversion Shares
except for
this Agreement, and the Company will not enter into any such
arrangement except
for the Registration Rights Agreement and as may be contemplated
thereby.
(ii) FSA
Price Stabilizing Rules. To the extent that information is
required to be publicly disclosed under the U.K. Financial Services
Authority's
Price Stabilizing Rules (the "Stabilizing Rules") before
stabilizing
transactions can be undertaken in compliance with the safe harbor
provided under
such Stabilizing Rules, such information has been adequately
publicly disclosed
(within the meaning of the Stabilizing Rules).
(jj) No
Unlawful Contributions or Other Payments. Neither the Company
nor
any of its subsidiaries nor, to the knowledge of the Company, any
director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries
is aware of or has taken any action, directly or indirectly, that
would result
in a violation by such persons of the FCPA, including, without
limitation,
making use of the mails or any means or instrumentality of
interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization
of the payment of any money, or other property, gift, promise to
give, or
authorization of the giving of anything of value to any "foreign
official" (as
such term is defined in the FCPA) or any foreign political party or
official
thereof or any candidate for foreign political office, in
contravention of the
FCPA and the Company, its subsidiaries and, to the knowledge of the
Company, its
affiliates have conducted their businesses in compliance with the
FCPA and have
instituted and maintain policies and
10
<PAGE>
procedures designed to ensure, and which are reasonably expected to
continue to
ensure, continued compliance therewith.
"FCPA"
means Foreign Corrupt Practices Act of 1977, as amended, and
the
rules and regulations thereunder.
(kk) No
Conflict with Money Laundering Laws. The operations of the
Company
and its subsidiaries are and have been conducted at all times in
compliance with
applicable financial recordkeeping and reporting requirements of
the Currency
and Foreign Transactions Reporting Act of 1970, as amended and, to
the best of
the Company's knowledge, the money laundering statutes of all
applicable
jurisdictions, the rules and regulations thereunder and any related
or similar
rules, regulations or guidelines issued, administered or enforced
by any
governmental agency (collectively, the "Money Laundering Laws") and
no action,
suit or proceeding by or before any court or governmental agency,
authority or
body or any arbitrator involving the Company or any of its
subsidiaries with
respect to the Money Laundering Laws is pending or, to the best of
the Company's
knowledge, threatened.
(ll) No
Conflict with OFAC Laws. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company
will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner
or other person or entity, for the purpose of financing the
activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(mm)
Compliance with Environmental Laws. Except as otherwise disclosed
in
the Disclosure Package and the Final Offering Memorandum, (i)
neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local
or foreign law, regulation, order, permit or other requirement
relating to
pollution or protection of human health or the environment
(including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface
strata) or wildlife, including without limitation, laws and
regulations relating
to emissions, discharges, releases or threatened releases of
chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances,
petroleum and petroleum products (collectively, "Materials of
Environmental
Concern"), or otherwise relating to the manufacture, processing,
distribution,
use, treatment, storage, disposal, transport or handling of
Materials of
Environmental Concern (collectively, "Environmental Laws"), which
violation
includes, but is not limited to, noncompliance with any permits or
other
governmental authorizations required for the current operation of
the business
of the Company or its subsidiaries under applicable Environmental
Laws, or
noncompliance with the terms and conditions thereof, nor has the
Company or any
of its subsidiaries received any written communication, whether
from a
governmental authority, citizens group, employee or otherwise, that
alleges that
the Company or any of its subsidiaries is in violation of any
Environmental Law,
except as would not, individually or in the aggregate, have a
Material Adverse
Effect; (ii) there is no claim, action or cause of action filed
with a court or
governmental authority, no investigation with respect to which the
Company has
received written notice, and no written notice by any person or
entity alleging
potential liability for investigatory costs, cleanup costs,
governmental
responses costs, natural resources damages, property damages,
personal injuries,
attorneys' fees or penalties arising out of, based on or resulting
from the
presence, or release into the environment, of any Material of
Environmental
Concern at any location owned, leased or operated by the Company or
any of its
subsidiaries, now or in the past (collectively, "Environmental
Claims"), pending
or, to the best of the
11
<PAGE>
Company's knowledge, threatened against the Company or any of its
subsidiaries
or any person or entity whose liability for any Environmental Claim
the Company
or any of its subsidiaries has retained or assumed either
contractually or by
operation of law, except as would not, individually or in the
aggregate, have a
Material Adverse Effect; (iii) to the best of the Company's
knowledge, there are
no past, present or anticipated future actions, activities,
circumstances,
conditions, events or incidents, including, without limitation, the
release,
emission, discharge, presence or disposal of any Material of
Environmental
Concern, that reasonably could result in a violation of any
Environmental Law,
require expenditures to be incurred pursuant to Environmental Law,
or form the
basis of a potential Environmental Claim against the Company or any
of its
subsidiaries or against any person or entity whose liability for
any
Environmental Claim the Company or any of its subsidiaries has
retained or
assumed either contractually or by operation of law, except as
would not,
individually or in the aggregate, have a Material Adverse Effect;
and (iv)
neither the Company nor any of its subsidiaries is subject to any
pending or, to
the best of the Company's knowledge, threatened proceeding under
any
Environmental Law to which a governmental authority is a party and
which is
reasonably likely to result in monetary sanctions of $100,000 or
more.
(nn)
Periodic Review of Costs of Environmental Compliance. In the
ordinary
course of its business, the Company conducts a periodic review of
the effect of
Environmental Laws on the business, operations and properties of
the Company and
its subsidiaries, in the course of which it identifies and
evaluates associated
costs and liabilities (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). On the
basis of such review and the amount of its established reserves,
the Company has
reasonably concluded that such associated costs and liabilities
would not,
individually or in the aggregate, have a Material Adverse
Effect.
(oo) ERISA
Compliance. None of the following events has occurred or
exists: (i) a failure to fulfill the obligations, if any, under the
minimum
funding standards of Section 302 of the United States Employee
Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and
published
interpretations thereunder with respect to a Plan, determined
without regard to
any waiver of such obligations or extension of any amortization
period; (ii) an
audit or investigation by the Internal Revenue Service, the U.S.
Department of
Labor, the Pension Benefit Guaranty Corporation or any other
federal or state
governmental agency or any foreign regulatory agency with respect
to the
employment or compensation of employees by any member of the
Company that could
have a Material Adverse Effect on the Company; (iii) any breach of
any
contractual obligation, or any violation of law or applicable
qualification
standards, with respect to the employment or compensation of
employees by any
member of the Company that could have a Material Adverse Effect.
None of the
following events has occurred or, to the best of the Company's
knowledge, is
reasonably likely to occur: (i) a material increase in the
aggregate amount of
contributions required to be made to all Plans in the current
fiscal year of the
Company compared to the amount of such contributions made in the
Company's most
recently completed fiscal year; (ii) a material increase in the
Company's
"accumulated post-retirement benefit obligations" (within the
meaning of
Statement of Financial Accounting Standards 106) compared to the
amount of such
obligations in the Company's most recently completed fiscal year;
(iii) any
event or condition giving rise to a liability under Title IV of
ERISA that could
have a Material Adverse Effect on the Company; or (iv) the filing
of a claim by
one or more employees or former employees of the Company related to
their
employment that could have a Material Adverse Effect on the
Company. For
purposes of this paragraph, the term "Plan" means a plan
12
<PAGE>
(within the meaning of Section 3(3) of ERISA) subject to Title IV
of ERISA with
respect to which any member of the Company may have any
liability.
(pp)
Brokers. There is no broker, finder or other party that is
entitled
to receive from the Company any brokerage or finder's fee or other
fee or
commission as a result of any transactions contemplated by this
Agreement.
(qq)
Sarbanes-Oxley Compliance. There is and has been no failure on
the
part of the Company and any of the Company's directors or officers,
in their
capacities as such, to comply in all material respects with the
applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations
promulgated in connection therewith (the "Sarbanes-Oxley Act"),
including
Section 402 related to loans and Sections 302 and 906 related to
certifications.
(rr)
Internal Controls and Procedures. The Company maintains (i)
effective
internal control over financial reporting as defined in Rule 13a-15
under the
Exchange Act, and (ii) a system of internal accounting controls
sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance
with management's general or specific authorizations; (B)
transactions are
recorded as necessary to permit preparation of financial statements
in
conformity with generally accepted accounting principles and to
maintain asset
accountability; (C) access to assets is permitted only in
accordance with
management's general or specific authorization; and (D) the
recorded
accountability for assets is compared with the existing assets at
reasonable
intervals and appropriate action is taken with respect to any
differences.
(ss) No
Material Weakness in Internal Controls. Since the end of the
Company's most recent audited fiscal year, 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.
(tt)
Disclosure Controls. The Company and its subsidiaries maintain
an
effective system of "disclosure controls and procedures" (as
defined in Rule
13a-15 of the Exchange Act) that is designed to ensure that
information required
to be disclosed by the Company in reports that it files or submits
under the
Exchange Act is recorded, processed, summarized and reported within
the time
periods specified in the Commission's rules and forms, including
controls and
procedures designed to ensure that such information is accumulated
and
communicated to the Company's management as appropriate to allow
timely
decisions regarding required disclosure. The Company and its
subsidiaries have
carried out evaluations of the effectiveness of their disclosure
controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(uu)
Subsidiaries. The subsidiaries listed on Annex A attached hereto
are
the only significant subsidiaries of the Company as defined by Rule
1-02(w) of
Regulation S-X (the "Subsidiaries").
Any
certificate signed by an officer of the Company and delivered to
the
Representatives or to counsel for the Initial Purchasers shall be
deemed to be a
representation and warranty by the Company to each Initial
Purchaser as to the
matters set forth therein.
SECTION 2.
PURCHASE, SALE AND DELIVERY OF THE NOTES
(a) The
Firm Notes. The Company agrees to issue and sell to the several
Initial Purchasers the Firm Notes upon the terms herein set forth.
On the basis
of the representations,
13
<PAGE>
warranties and agreements herein contained, and upon the terms but
subject to
the conditions herein set forth, the Initial Purchasers agree,
severally and not
jointly, to purchase from the Company the respective principal
amount of Firm
Notes set forth opposite their names on Schedule A at a purchase
price of 97% of
the aggregate principal amount thereof.
(b) The Closing
Date. Delivery of the Firm Notes to be purchased by the
Initial Purchasers and payment therefor shall be made at the
offices of Cleary
Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New
York 10006 (or
such other place as may be agreed to by the Company and the
Representatives) at
9:00 a.m. New York City time, on September 19, 2006, or such other
time and date
not later than October 3, 2006 as the Representatives shall
designate by notice
to the Company (the time and date of such closing are called the
"Closing
Date").
(c) The
Optional Notes; any Subsequent Closing Date. In addition, on
the
basis of the representations, warranties and agreements herein
contained, and
upon the terms but subject to the conditions herein set forth, the
Company
hereby grants an option to the several Initial Purchasers to
purchase, severally
and not jointly, up to $30,000,000 aggregate principal amount of
Optional Notes
from the Company at the same price as the purchase price to be paid
by the
Initial Purchasers for the Firm Notes. The option granted hereunder
may be
exercised only to cover over-allotments in the sale of the Firm
Notes by the
Initial Purchasers. The option granted hereunder may be exercised
at any time
and from time to time upon notice by the Representatives to the
Company, which
notice may be given at any time within 30 days from the date of
this Agreement.
Such notice shall set forth (i) the amount (which shall be an
integral multiple
of $1,000 in aggregate principal amount) of Optional Notes as to
which the
Initial Purchasers are exercising the option, (ii) the names and
denominations
in which the Optional Notes are to be registered and (iii) the
time, date and
place at which such Notes will be delivered (which time and date
may be
simultaneous with, but not earlier than, the Closing Date; and in
such case the
term "Closing Date" shall refer to the time and date of delivery of
the Firm
Notes and the Optional Notes). Such time and date of delivery, if
subsequent to
the Closing Date, is called a "Subsequent Closing Date" and shall
be determined
by the Representatives. Such date may be the same as the Closing
Date but not
earlier than the Closing Date nor later than 10 business days after
the date of
such notice. If any Optional Notes are to be purchased, each
Initial Purchaser
agrees, severally and not jointly, to purchase the principal amount
of Optional
Notes (subject to such adjustments to eliminate fractional amount
as the
Representatives may determine) that bears the same proportion to
the total
principal amount of Optional Notes to be purchased as the principal
amount of
Firm Notes set forth on Schedule A opposite the name of such
Initial Purchaser
bears to the total principal amount of Firm Notes.
(d)
Payment for the Notes. Payment for the Notes shall be made on
the
Closing Date (and, if applicable, on any Subsequent Closing Date)
by wire
transfer of immediately available funds to the order of the
Company.
It is
understood that the Representatives have been authorized, for
their
own account and the accounts of the several Initial Purchasers, to
accept
delivery of and receipt for, and make payment of the purchase price
for, the
Firm Notes and any Optional Notes the Initial Purchasers have
agreed to
purchase. DBS or BAS, individually and not as the Representative of
the Initial
Purchasers, may (but shall not be obligated to) make payment for
any Notes to be
purchased by any Initial Purchaser whose funds shall not have been
received by
the Representatives by the Closing Date or any Subsequent Closing
Date, as the
case may be, for the account of such Initial Purchaser, but any
such payment
shall not relieve such Initial Purchaser from any of its
obligations under this
Agreement.
14
<PAGE>
(e)
Delivery of the Notes. The Company shall deliver, or cause to
be
delivered, to the Representatives for the accounts of the several
Initial
Purchasers the Firm Notes at the Closing Date, against the
irrevocable release
of a wire transfer of immediately available funds for the amount of
the purchase
price therefor. The Company shall also deliver, or cause to be
delivered, to the
Representatives for the accounts of the several Initial Purchasers,
the Optional
Notes the Initial Purchasers have agreed to purchase at the Closing
Date or any
Subsequent Closing Date, as the case may be, against the
irrevocable release of
a wire transfer of immediately available funds for the amount of
the purchase
price therefor. Delivery of the Notes shall be made through the
facilities of
The Depository Trust Company unless the Representatives shall
otherwise
instruct. Time shall be of the essence, and delivery at the time
and place
specified in this Agreement is a further condition to the
obligations of the
Initial Purchasers.
SECTION 3.
COVENANTS OF THE COMPANY
The
Company covenants and agrees with each Initial Purchaser as
follows:
(a)
Representatives' Review of Proposed Amendments and Supplements.
During
such period beginning on the date hereof and ending on the date of
the
completion of the resale of the Notes by the Initial Purchasers (as
notified by
the Initial Purchasers to the Company), prior to amending or
supplementing the
Disclosure Package or the Final Offering Memorandum, the Company
shall furnish
to the Representatives for review a copy of each such proposed
amendment or
supplement, and the Company shall not print, use or distribute such
proposed
amendment or supplement to which the Representatives reasonably
object.
(b)
Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters. If, at any time prior to the completion of
the resale of
the Notes by the Initial Purchasers (as notified by the Initial
Purchasers to
the Company), any event or development shall occur or condition
exist as a
result of which it is necessary to amend or supplement the
Disclosure Package or
the Final Offering Memorandum in order that the Disclosure Package
or the Final
Offering Memorandum will not include an untrue statement of a
material fact or
omit to state a material fact necessary in order to make the
statements therein,
in the light of the circumstances under which they were made or
then prevailing,
as the case may be, not misleading, or if in the reasonable opinion
of the
Representatives or counsel for the Initial Purchasers it is
otherwise necessary
to amend or supplement the Disclosure Package or the Final Offering
Memorandum
to comply with applicable law, the Company shall promptly notify
the Initial
Purchasers and prepare, subject to Section 3(a) hereof, such
amendment or
supplement as may be necessary to correct such untrue statement or
omission.
(c) Copies
of Disclosure Package and the Offering Memorandum. The Company
agrees to furnish to the Representatives, without charge, until the
earlier of
(i) six months after the completion of the sale of the Notes to the
Initial
Purchasers and (ii) the date of the effectiveness of the
Registration Statement
as many copies of the materials contained in the Disclosure Package
and the
Final Offering Memorandum and any amendments and supplements
thereto as the
Representatives may request.
(d) Blue
Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Initial Purchasers, as the
Initial
Purchasers may reasonably
