Exhibit 10.1
EXECUTION COPY
$75,000,000
Power-One, Inc.
Senior Secured Convertible Notes due 2013
PURCHASE AGREEMENT
June 12, 2008
LEHMAN
BROTHERS INC.,
As
Representative of the several
Initial Purchasers named in Schedule I attached
hereto,
c/o Lehman
Brothers Inc.
745 Seventh
Avenue
New York, New
York 10019
Ladies and
Gentlemen:
Power-One, Inc., a Delaware corporation
(the “ Company ”), proposes, upon the terms and
conditions set forth in this agreement (this “
Agreement ”), to issue and sell to you, as the initial
purchasers (the “ Initial Purchasers ”),
$75,000,000 in aggregate principal amount of its Senior Secured
Convertible Notes due 2013 (the “ Firm
Securities ”). The Firm Securities will
(i) have terms and provisions that are summarized in the
Pricing Disclosure Package (as defined below) and Offering
Memorandum (as defined below) and (ii) are to be issued
pursuant to an Indenture (the “ Indenture ”) to
be entered into between the Company and The Bank of New York Trust
Company, N.A., as trustee (the “ Trustee
”). The Company also proposes to issue and sell to the
Initial Purchasers not more than an additional $5,000,000 principal
amount of Senior Secured Convertible Notes due 2013 (the “
Option Securities ”) if and to the extent that you, as
Representative of the Initial Purchasers, shall have determined to
exercise, on behalf of the Initial Purchasers, the right to
purchase such Senior Secured Convertible Notes due 2013 granted to
the Initial Purchasers in Section 3(a) hereof. The
Firm Securities and the Option Securities are hereinafter
collectively referred to as the “ Securities
”. The Securities will be convertible into shares of
common stock, par value $0.001 per share (“ Common
Stock ”) of the Company (the shares of Common Stock into
which the Securities are convertible, the “ Conversion
Shares ”). This is to confirm the agreement
concerning the purchase of the Securities from the Company by the
Initial Purchasers.
The
Securities will be secured on a first priority basis by the
security documents listed in Schedule V hereto (collectively, the
“ Security Documents ”).
1.
Purchase and Resale of the
Securities . The Securities will be offered and sold
to the Initial Purchasers without registration under the Securities
Act of 1933, as amended (the “ Securities Act
”), in reliance on an exemption therefrom. The Company
has prepared a
preliminary offering memorandum, dated
June 11, 2008 (the “ Preliminary Offering
Memorandum ”), a pricing term sheet substantially in the
form attached hereto as Schedule II (the “ Pricing Term
Sheet ”) setting forth the terms of the Securities
omitted from the Preliminary Offering Memorandum and an offering
memorandum, dated June 12, 2008 (the “ Offering
Memorandum ”), setting forth information regarding the
Company and the Securities. The Preliminary Offering Memorandum, as
supplemented and amended as of the Applicable Time (as defined
below), together with the Pricing Term Sheet and any of the
documents listed or information presented on Schedule III hereto
are collectively referred to as the “ Pricing Disclosure
Package .” The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum, the
Pricing Disclosure Package and the Offering Memorandum in
connection with the offering and resale of the Securities by the
Initial Purchasers. “ Applicable Time ” means
8:30 a.m. (New York City time) on the date of this
Agreement.
Any
reference to the Preliminary Offering Memorandum, the Pricing
Disclosure Package or the Offering Memorandum shall be deemed to
refer to and include the Company’s most recent Annual Report
on Form 10-K and all other documents filed with the United
States Securities and Exchange Commission (the “
Commission ”) pursuant to Section 13(a) or
15(d) of the United States Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), subsequent to
the end of the Company’s most recently completed fiscal year
and on or prior to the date of the Preliminary Offering Memorandum,
the Pricing Disclosure Package or the Offering Memorandum, as the
case may be. Any reference to the Preliminary Offering
Memorandum, Pricing Disclosure Package or the Offering Memorandum,
as the case may be, as amended or supplemented, as of any specified
date, shall be deemed to include (i) any documents filed with
the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the date of the Preliminary Offering
Memorandum, Pricing Disclosure Package or the Offering Memorandum,
as the case may be, and prior to such specified date. All
documents filed under the Exchange Act and so deemed to be included
in the Preliminary Offering Memorandum, Pricing Disclosure Package
or the Offering Memorandum, 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, 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.
It
is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Securities (and
all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend (along with such other
legends as the Initial Purchasers and their counsel deem
necessary):
‘‘THE SECURITIES EVIDENCED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
THE TRANSACTION IS EXEMPT
2
FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO
(X) THE DATE WHICH IS ONE YEAR (OR SUCH SHORTER PERIOD OF TIME
AS PERMITTED BY RULE 144(d)(i) UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE
LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION
DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR
(D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
You have advised the Company that you will make
offers (the “ Exempt Resales ”) of the
Securities purchased by you hereunder on the terms set forth in
each of the Pricing Disclosure Package and the Offering Memorandum,
as amended or supplemented, solely to persons (the “
Eligible Purchasers ”) whom you reasonably believe to
be “qualified institutional buyers” as defined in
Rule 144A under the Securities Act (“ QIBs
”). You have advised the Company that you
will offer the Securities to Eligible Purchasers initially at a
price equal to 100% of the
3
principal amount thereof plus accrued interest,
if any. Such price may be changed at any time without
notice.
2.
Representations, Warranties
and Agreements of the Company . The Company represents, warrants and
agrees as follows:
(a)
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 Securities Act) as securities of the Company that are
listed on a United States national securities exchange registered
or that are quoted in a United States automated inter-dealer
quotation system.
(b)
Neither the Company nor any subsidiary is, nor after giving effect
to the offer and sale of the Securities and the application of the
proceeds therefrom as described under “Use of Proceeds”
in each of the Pricing Disclosure Package and the Offering
Memorandum will be required to register as an “investment
company” under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission
thereunder.
(c)
Assuming that your representations and warranties in
Section 3(b) are true, the purchase and resale of the
Securities pursuant hereto (including pursuant to the Exempt
Resales), and the conversion of the Securities into the Conversion
Shares in the manner contemplated by this Agreement, the Indenture,
the Pricing Disclosure Package and the Offering Memorandum, is
exempt from the registration requirements of the Securities
Act. No form of general solicitation or general advertising
within the meaning of Regulation D (including, but not limited to,
advertisements, articles, notices or other communications published
in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising)
was used by the Company or any of its representatives (other than
you, as to whom the Company makes no representation) in connection
with the offer and sale of the Securities.
(d)
Each of the Preliminary Offering Memorandum, the Pricing Disclosure
Package and the Offering Memorandum, each as of its respective
date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities
Act.
(e)
The Preliminary Offering Memorandum, the Pricing Disclosure Package
and the Offering Memorandum have been prepared by the Company for
use by the Initial Purchasers in connection with the Exempt
Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum, the Pricing Disclosure Package or
the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the
registration requirements of the Securities Act has been issued,
and no proceeding for that purpose has commenced or is pending or,
to the knowledge of the Company is contemplated.
(f)
The Pricing Disclosure Package did not, as of the Applicable Time,
and will not, as of the Closing Date, contain an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements made therein, in the light of
the
4
circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representative by
or on behalf of any Initial Purchaser specifically for inclusion
therein, which information is specified in
Section 8(e).
(g)
The Offering Memorandum will not, as of its date and as of the
Closing Date, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Company
through the Representative by or on behalf of any Initial Purchaser
specifically for inclusion therein, which information is specified
in Section 8(e).
(h)
The Company has not made any offer to sell or solicitation of an
offer to buy the Securities that would constitute a “free
writing prospectus” (if the offering of the Securities was
made pursuant to a registered offering under the Securities Act),
as defined in Rule 405 under the Securities Act (a “
Free Writing Offering Document ”) without the prior
consent of the Representative; any such Free Writing Offering
Document the use of which has been previously consented to by the
Initial Purchasers is set forth substantially in form and substance
as attached hereto on Schedule III.
(i)
The Exchange Act Reports did not, when filed with the Commission,
contain an untrue statement of material fact or omit to state a
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading.
(j)
The statistical and market-related data included in the Pricing
Disclosure Package are based on or derived from sources that the
Company believes to be reliable and accurate in all material
respects.
(k)
Each of the Company and its subsidiaries has been duly organized
and is validly existing and in good standing as a corporation or
other business entity under the laws of its jurisdiction of
organization and is duly qualified to do business and in good
standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, except where
the failure to be so qualified or in good standing would not, in
the aggregate, reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), results of
operations, stockholders’ equity, properties, business or
prospects of the Company and its subsidiaries taken as a whole or a
material adverse effect on the performance by the Company of the
performance of this Agreement, the Indenture, the Securities, or
the Security Documents or the consummation of any of the
transactions contemplated hereby or thereby (a “ Material
Adverse Effect ”); each of the Company and its
subsidiaries has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is
engaged. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in the Company’s Annual Report on
Form 10-K for the most recent fiscal
5
year. None of the subsidiaries of the Company
(other than PAI Capital LLC (Delaware LLC), HC Power Inc.
(California corporation), Power One Limited (Cayman Islands),
Power-One Italy S.p.A. (Italy), Power-One AG (Swiss) (collectively,
the “ Significant Subsidiaries ”)) is a
“significant subsidiary” (as defined in Rule 405
under the Securities Act).
(l)
The Company has an authorized capitalization as set forth in each
of the Pricing Disclosure Package and the Offering Memorandum, and
all of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of
each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and (except for
directors’ qualifying shares for foreign subsidiaries and
except as set forth in each of the Pricing Disclosure Package and
the Offering Memorandum) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except for such liens, encumbrances, equities or claims as
would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(m)
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized
by the Company, and upon its execution and delivery and, assuming
due authorization, execution and delivery by the Trustee, will
constitute the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); no qualification
of the Indenture under the Trust Indenture Act of 1939 (the “
1939 Act ”) is required in connection with the offer
and sale of the Securities contemplated hereby or in connection
with the Exempt Resales. The Indenture will conform in all
material respects to the description thereof in each of the Pricing
Disclosure Package and the Offering Memorandum.
(n)
The Company has all requisite corporate power and authority to
execute, issue, sell and perform its obligations under the
Securities. The Securities have been duly authorized by the
Company and, when duly executed by the Company in accordance with
the terms of the Indenture, assuming due authentication of the
Securities by the Trustee, upon delivery to the Initial Purchasers
against payment therefor in accordance with the terms hereof, will
be validly issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture, enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors’ rights generally and by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). The Securities will conform in all material respects to
the description thereof in each of the Pricing Disclosure Package
and the Offering Memorandum.
(o)
The Company has all the requisite corporate power and authority to
issue and deliver the Conversion Shares issuable upon conversion of
the Securities. The Conversion Shares have been duly and
validly authorized by the Company and, and when issued
upon
6
conversion of the Securities in accordance with
the terms of the Indenture and Securities, will be validly issued,
fully paid and non-assessable, and the issuance of the Conversion
Shares will not be subject to any preemptive or similar rights
under the Company’s certificate of incorporation, by-laws or
the Delaware General Corporation Law, or under any agreement or
instrument to which the Company or any of its subsidiaries is a
party, or of which the Company is otherwise aware. The
Conversion Shares will conform in all material respects to the
description thereof in each of the Pricing Disclosure Package and
the Offering Memorandum.
(p)
The Company and each of its subsidiaries party thereto has all
requisite corporate power to execute, deliver and perform its
obligations under this Agreement. This Agreement has been
duly and validly authorized, executed and delivered by the
Company.
(q)
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Security
Documents. The Security Documents have each been duly and
validly authorized by the Company and each of the Subsidiaries
party thereto, and, when duly executed and delivered in accordance
with its terms by each of the other parties thereto, will
constitute the valid and binding agreements of the Company and each
such subsidiary, enforceable against the Company and each such
subsidiary, respectively, in accordance with their terms, except as
may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors’ rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law). The Security Documents
will conform in all material respects to the description thereof in
each of the Pricing Disclosure Package and the Offering
Memorandum.
(r)
Each applicable pledging
entity under each Security Document owns the relevant collateral
covered by such Security Document (collectively, the “
Collateral ”), free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim (other than
Permitted Liens (as defined in the Indenture) and, pending release
of such liens on the Closing Date, the liens of PWER Bridge
LLC). All filings and other actions necessary or
desirable
to perfect (to the extent
such concept is applicable under the relevant laws) and protect the
security interest in the Collateral to be created under the
Security Documents that are required to be made by the Company or
its subsidiaries under the Security Documents have been or will be
at or prior to the Closing Date duly made or taken and are or will
be at or prior to the Closing Date in full force and effect and,
together with the execution and delivery of the Security Documents
by the Company (assuming due execution and delivery by the other
parties thereto), will on the Closing Date create a valid and
perfected (to the extent such concept is applicable under the
relevant laws) first-priority security interest in the Collateral
(subject to customary permitted liens) securing the obligations of
the Company (except to the extent under applicable foreign law such
filings cannot be made until after the Closing Date, in which case
such filings shall be made as promptly as practicable
thereafter).
(s)
The issue and sale of the Securities, the issuance and delivery of
any Conversion Shares, the execution, delivery and performance by
the Company of the Securities, the Indenture, the Security
Documents and this Agreement, the application of the proceeds from
the sale of the Securities as described under “Use of
Proceeds” in each of the Pricing Disclosure Package and the
Offering Memorandum and the consummation of the transactions
contemplated
7
hereby and thereby, will not (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, impose any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license, lease 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 (except that this representation shall apply only with
respect to the PWER Bridge Term Loan Agreement as of the
consummation of closing), (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational
document of the Company or any of its subsidiaries,
(iii) result in any
violation of any rule or regulation of the NASDAQ Global
Market or
(iv) result in any violation of any statute or any judgment,
order, decree, 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 or assets, except, with
respect to clauses (i) and (iv), conflicts or violations that
would not reasonably be expected to have a Material Adverse
Effect.
(t)
No consent, approval, authorization or order of, or filing,
registration or qualification with any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries is required for the issue and sale of the Securities,
the execution, delivery and performance by the Company of the
Securities, including the issuance and delivery of the Conversion
Shares, the Indenture, the Security Documents and this Agreement,
the application of the proceeds from the sale of the Securities as
described under “Use of Proceeds” in each of the
Pricing Disclosure Package and the Offering Memorandum and the
consummation of the transactions contemplated hereby and thereby,
except for such consents, approvals, authorizations, orders,
filings, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Initial Purchasers, and
such filings that may be required pursuant to the Security
Documents.
(u)
Except as identified in the Pricing Disclosure Package and the
Offering Memorandum, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
(v)
Neither the Company nor any other person acting on behalf of the
Company has sold or issued any securities that would be integrated
with the offering of the Securities contemplated by this Agreement
pursuant to the Securities Act, the rules and regulations
thereunder or the interpretations thereof by the Commission. 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 under the Securities
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 the Company by the Initial Purchasers), 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
8
provisions of the Securities Act, including any
sales pursuant to Rule 144A under the Securities
Act.
(w)
Except as described in the each of the Pricing Disclosure Package
and the Offering Memorandum, neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included in the Pricing Disclosure Package,
any 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, and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any adverse change, or any development involving a
prospective adverse change, in or affecting the condition
(financial or otherwise), results of operations,
stockholders’ equity, properties, management, business or
prospects of the Company and its subsidiaries, taken as a whole, in
each case except as would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(x)
The historical financial statements (including the related notes
and supporting schedules) included in the Pricing Disclosure
Package and the Offering Memorandum present fairly in all material
respects the financial condition, results of operations and cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods
involved. The other financial data included in the Offering
Memorandum is, in all material respects, accurately presented and
has been prepared on a basis consistent with such financial
statements and the books and records of the Company.
(y)
Deloitte & Touche LLP, who have certified certain
financial statements of the Company, whose report appears in the
Pricing Disclosure Package and who have delivered the initial
letter referred to in Section 7(e) hereof, are
independent public accountants as required by the Securities Act
and the rules and regulations thereunder.
(z)
The Company and each of its subsidiaries has 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, except such as are
described in the Pricing Disclosure Package and the Offering
Memorandum and 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 or any of its
subsidiaries; and all assets held under lease by the Company or any
of its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as do not materially
interfere with the use made and proposed to be made of such assets
by the Company or any of its subsidiaries.
(aa)
The Company and each of its subsidiaries carry, or are covered by,
insurance from insurers of recognized financial responsibility in
such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar
businesses in similar industries. All policies of insurance
of the Company and its subsidiaries are in full force and effect;
the Company and its subsidiaries are in compliance with the terms
of such policies in all material respects; and neither the Company
nor any of its subsidiaries has received notice from
any
9
insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be
made in order to continue such insurance; there are no 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 any such subsidiary has any reason to believe that it
will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a
cost that would not reasonably be expected to have a Material
Adverse Effect.
(bb)
The Company and each of its subsidiaries have such permits,
licenses, patents, franchises, certificates of need and other
approvals or authorizations of governmental or regulatory
authorities (“ Permits ”) as are necessary under
applicable law to own their properties and conduct their businesses
in the manner described in the Pricing Disclosure Package and the
Offering Memorandum, except for any of the foregoing that would
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect or except as described in the Pricing Disclosure
Package and the Offering Memorandum; each of the Company and its
subsidiaries has fulfilled and performed all of its obligations
with respect to the Permits, and no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except for any of the
foregoing that would not reasonably be expected to have a Material
Adverse Effect or except as described in the Pricing Disclosure
Package.
(cc)
The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses, know-how,
software, systems and technology (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the “
Intellectual Property Rights ”) necessary for the
conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and other than as disclosed in the Exchange Act
Reports or as would have a material adverse effect, have not
received any notice of any claim of conflict with, any such rights
of others.
(dd)
Except as disclosed in the
Pricing Disclosure Package and the Offering Memorandum:
(i)
To the best of the Company’s knowledge, none of the products
manufactured, marketed, used, sold or licensed by the Company
and/or as anticipated to be manufactured, marketed, used, sold or
licensed by the Company or any subsidiary, and none of the
Intellectual Property Rights used by the Company or any subsidiary
in the conduct of the Company’s business as described in the
Pricing Disclosure Package and the Offering Memorandum, infringes
upon, violates or constitutes the unauthorized use of any valid and
enforceable rights owned or controlled by any third party.
(ii)
No litigation to which the Company or any subsidiary is a party is
now pending and no notice or other claim in writing has been
received by the Company (A) alleging that the Company or any
subsidiary has engaged in any activity or conduct that infringes
upon, violates or constitutes the unauthorized use of the
Intellectual Property Rights of any third
10
party or (ii) challenging the ownership,
use, validity or enforceability of any Intellectual Property Rights
owned by or exclusively licensed to or by the Company or any
subsidiary. No Intellectual Property Rights, used or is likely to
be used in the business of the Company as described in the Pricing
Disclosure Package and the Offering Memorandum (x) that is
owned by the Company or a subsidiary is subject to any outstanding
order, judgment, decree, stipulation or agreement materially
restricting the use, sale, transfer, assignment or licensing
thereof by the Company or such subsidiary, except as may be
specifically provided in any license agreement, or (y) that is
the subject of an inbound license agreement is subject to any
outstanding judgment, decree, stipulation or agreement materially
restricting the use, sale, transfer, assignment or licensing
thereof by the Company or any subsidiary, except as provided in the
inbound license agreements or other licenses or
agreements.
(iii)
To the Company’s knowledge, no third party is
misappropriating, infringing, diluting or violating any
Intellectual Property Rights of the Company or any subsidiary, that
is used or is likely to be used in the business of the Company as
described in the Pricing Disclosure Package and the Offering
Memorandum, and no such claims have been brought against any third
party by the Company or any subsidiary.
(iv)
The Company and its subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all
of their intellectual properties.
(ee)
Except as described in the Pricing Disclosure Package and the
Offering Memorandum, 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 or assets of the Company or any of its
subsidiaries is the subject that would, in the aggregate,
reasonably be expected to have a Material Adverse Effect or to have
a material adverse effect on the performance by the Company of the
performance of this Agreement, the Indenture, the Securities, or
the Security Agreement or the consummation of any of the
transactions contemplated hereby; and to the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or others.
(ff)
There are no legal or
governmental proceedings or contracts or other documents that would
be required to be described in a registration statement filed under
the Securities Act or, in the case of documents, would be required
to be filed as exhibits to a registration statement of the Company
pursuant to Item 601(b)(10) of Regulation S-K that have not
been described in the Pricing Disclosure Package and the Offering
Memorandum. Neither the Company nor any of its subsidiaries
has knowledge that any other party to any such contract, agreement
or arrangement has any intention not to render full performance as
contemplated by the terms thereof; and that statements made in the
Pricing Disclosure Package and the Offering Memorandum, insofar as
they purport to constitute summaries of the terms of statutes,
rules or regulations, legal or governmental proceedings or
contracts and other documents, constitute accurate summaries of the
terms of such statutes, rules and regulations, legal and
governmental proceedings and contracts and other documents in all
material respects.
(gg)
No relationship, direct or indirect, that would be required to be
described in a registration statement of the Company pursuant to
Item 404 of Regulation S-K, exists between or among the Company, on
the one hand, and the directors, officers,
stockholders,
11
customers, suppliers or affiliates of the
Company, on the other hand, that has not been described in the
Pricing Disclosure Package and the Offering Memorandum.
(hh)
Except as described in the Pricing Disclosure Package and the
Offering Memorandum, no labor disturbance by the employees of the
Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent that would reasonably be expected to have
a Material Adverse Effect.
(ii)
(i) Each
“employee benefit plan” (within the meaning of
Section 3(3) of the Employee Retirement Security Act of
1974, as amended (“ ERISA ”)) for which the
Company or any member of its “Controlled Group”
(defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended (the “ Code
”)) would have any liability (each a “ Plan
”) has been maintained in compliance with its terms and with
the requirements of all applicable statutes, rules and
regulations including ERISA and the Code; (ii) with respect to
each Plan subject to Title IV of ERISA (a) no
“reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur, (b) no “accumulated funding
deficiency” (within the meaning of Section 302 of ERISA
or Section 412 of the Code), whether or not waived, has
occurred or is reasonably expected to occur, (c) the fair
market value of the assets under each Plan exceeds the present
value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan) and (d) neither the
Company or any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the PBGC in
the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning
of Section 4001(c)(3) of ERISA); and (iii) each Plan
that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(jj)
The Company and each of
its subsidiaries has filed all federal, state, local and foreign
income and franchise tax returns required to be filed through the
date hereof, subject to permitted extensions, and has paid all
taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies except, in each
case, as would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(kk)
There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale
by the Company of the Securities.
(ll)
Since the date as of
which information is given in the Pricing Disclosure Package and
except as otherwise described in the Pricing Disclosure Package and
the Offering Memorandum, the Company has not (i) issued or
granted any securities other than issuances of common stock
pursuant to exercises of employee stock options disclosed as being
outstanding in the Pricing Disclosure Package and the Offering
Memorandum, (ii) incurred any liability or obligation, direct
or contingent, other than liabilities and obligations that were
incurred in the
12
ordinary course of business, (iii) entered
into any material transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital
stock.
(mm) The Company
and each of its subsidiaries (i) makes and keeps accurate
books and records and (ii) maintains and has maintained
effective internal control over financial reporting as defined in
Rule 13a-5 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorization,
(B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with
accounting principles generally accepted in the United States and
to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management’s
general or specific authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(nn)
Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws (or similar organizational
documents), (ii) is in default, and no event has occurred
that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term,
covenant, condition or other obligation contained in any indenture,
mortgage, deed of trust, loan agreement, license or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is
in violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over it or its property or assets or has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of clauses
(ii) and (iii), to the extent any such conflict, breach,
violation or default would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(oo)
Neither the Company nor any of its subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(pp)
The Company and each of its subsidiaries (i) are, and at all
times prior hereto were, in compliance with all laws, regulations,
ordinances, rules, orders, judgments, decrees, permits or other
legal requirements of any governmental authority, including without
limitation any international, national, state, provincial,
regional, or local authority, relating to the protection of human
health or safety, the environment, or natural resources, or to
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”) applicable to such
entity, which compliance includes, without limitation, obtaining,
maintaining and complying with all permits and authorizations and
approvals required by Environmental Laws to conduct their
respective businesses, and (ii) have not received notice of
any actual or alleged violation of Environmental Laws, or of any
potential liability for or other obligation concerning the
presence, disposal or release of hazardous or toxic substances or
wastes, pollutants or
13
contaminants, except in the case of clause
(i) or (ii) where such non-compliance, violation,
liability, or other obligation would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Except as described in the Pricing Disclosure Package and the
Offering Memorandum, (A) there are no proceedings that are
pending, or known to be contemplated, against the Company or any of
its subsidiaries under Environmental Laws in which a governmental
authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (B) the Company and its subsidiaries
are not aware of any issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws
or concerning hazardous or toxic substances or wastes, pollutants
or contaminants, that would reasonably be expected to have a
material effect on the capital expenditures, earnings or
competitive position of the Company and its subsidiaries, and
(C) none of the Company and its subsidiaries anticipates
material capital expenditures relating to Environmental
Laws.
(qq)
None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the
Securities), will violate or result in a violation on the part of
the Company or any of its subsidiaries 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.
(rr)
The statements set forth
in each of the Pricing Disclosure Package and the Offering
Memorandum under the caption “Description of the
Notes,” insofar as they purport to constitute a summary of
the terms of the Indenture, the Securities and the Security
Documents, under the caption “Description of Capital
Stock,” insofar as they purport to constitute summaries of
the terms of the common stock of the Company, and under the caption
“Certain Material U.S. Federal Income Tax
Consequences,” insofar as they purport to describe the
constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto, are
accurate in all material respects.
(ss)
The Company and its affiliates have not taken, directly or
indirectly, any action designed to or that has constituted or that
reasonably can be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company in
connection with the offering of the Securities.
(tt)
(i) The Company and
each of its subsidiaries have established and maintain disclosure
controls and procedures (as such term is defined in
Rule 13a-15 under the Exchange Act), (ii) such disclosure
controls and procedures are designed to ensure that the information
required to be disclosed by the Company in the reports they file or
submit under the Exchange Act is accumulated and communicated to
management of the Company and its subsidiaries, including their
respective principal executive officers and principal financial
officers, as appropriate, to allow timely decisions regarding
required disclosure to be made; and (iii) such disclosure
controls and procedures are effective in all material respects to
perform the functions for which they were established.
(uu)
Since the date of the most recent balance sheet of the Company and
its consolidated subsidiaries reviewed or audited by
Deloitte & Touche LLP and the audit committee of the board
of directors of the Company, (i) the Company has not been
advised of
14
(A) any significant deficiencies or
material weaknesses in the design or operation of internal controls
that would adversely affect the ability of the Company or any of
its subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls or
(B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and
(ii) since that date, there have been no significant changes
in internal controls or in other factors that would significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material
weaknesses.
(vv)
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 the Pricing
Disclosure Package.
(ww) 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 with the provisions of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection
therewith.
(xx)
The section entitled
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations – Critical Accounting
Policies and Estimates” in the Company’s Annual Report
on Form 10-K for the year ended December 30, 2007 and the
Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended March 30, 2008 contained in the Pricing
Disclosure Package accurately and fully describes (A) the
accounting policies that the Company believes are the most
important in the portrayal of the Company’s financial
condition and results of operations and that require
management’s most difficult, subjective or complex judgments;
(B) the judgments and uncertainties affecting the application
of critical accounting policies; and (C) the likelihood that
materially different amounts would be reported under different
conditions or using different assumptions and an explanation
thereof.
(yy)
Neither the Company nor any subsidiary is in violation of or has
received notice of any violation with respect to any federal or
state law relating to discrimination in the hiring, promotion or
pay of employees, nor any applicable federal or state wage and hour
laws, nor any state law precluding the denial of credit due to the
neighborhood in which a property is situated, the violation of any
of which would reasonably be expected to have a Material Adverse
Affect.
(zz)
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, the money laundering statutes of all
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
15
pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be
expected to have a Material Adverse Effect.
(aaa) 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.
Any
certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Initial Purchaser.
3.
Purchase
of the Securities by the Initial Purchasers, Agreements to Sell,
Purchase and Resell . (a) The Company hereby
agrees, on the basis of the representations, warranties and
agreements of the Initial Purchasers contained herein and subject
to all the terms and conditions set forth herein, to issue and sell
to the Initial Purchasers and, upon the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth
herein, each Initial Purchaser agrees, severally and not jointly,
to purchase from the Company, at a purchase price equal to 96% of
the principal amount thereof, plus accrued interest, if any, from
June 17, 2008, the total principal amount of Securities set
forth opposite the name of such Initial Purchaser in Schedule I
hereto (it being understood that such amount satisfies the fee
payable pursuant to Section 4(a) of the Company’s
engagement letter with Lehman Brothers Inc. dated March 27,
2008). The Company shall not be obligated to deliver any of
the Securities to be delivered hereunder except upon payment for
all of the securities to be purchased as provided herein.
On the basis of the representations and
warranties contained in this Agreement, and subject to its terms
and conditions, the Company agrees to sell to the Initial
Purchasers the Option Securities, and the Initial Purchasers shall
have the right to purchase, severally and not jointly, up to
$5,000,000 aggregate principal amount of Option Securities at a
purchase price equal to 96 % of the principal amount
thereof, plus accrued interest, if any, from June 17,
2008. The Representative may exercise this right on behalf of the
Initial Purchasers to cover over-allotments in the sale of Firm
Securities in whole or from time to time in part by giving written
notice not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the principal
amount of Option Securities to be purchased by the Initial
Purchasers and the date on which such Option Securities are to be
purchased. Each purchase date must be at least one business
day after the written notice is given and may not be earlier than
the closing date for the Firm Securities nor later than ten
business days after the date of such notice. Option
Securities may be purchased as provided in Section 4 solely
for the purpose of covering over allotments made in connection with
the offering of the Firm Securities. On each day, if any,
that Option Securities are to be purchased (an “ Option
Closing Date ”), each Initial Purchaser agrees, severally
and not jointly, to purchase the principal amount of Option
Securities (subject to such
16
adjustments to eliminate fractional Securities
as you may determine) that bears the same proportion to the total
principal amount of Option Securities to be purchased on such
Option Closing Date as the principal amount of Firm Securities set
forth in Schedule I opposite the name of such Initial Purchaser
bears to the total principal amount of Firm Securities.
(b)
Each of the
Initial Purchasers, severally and not jointly hereby represents and
warrants to the Company that it will offer the Securities for sale
upon the terms and conditions set forth in this Agreement and in
the Pricing Disclosure Package. Each of the Initial
Purchasers, severally and not jointly, hereby represents and
warrants to, and agrees with, the Company, on the basis of the
representations, warranties and agreements of the Company, that
such Initial Purchaser: (i) is a QIB with such knowledge and
experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the
Securities; (ii) is purchasing the Securities pursuant to a
private sale exempt from registration under the Securities Act;
(iii) in connection with the Exempt Resales, will solicit
offers to buy the Securities only from, and will offer to sell the
Securities only to, the Eligible Purchasers in accordance with this
Agreement and on the terms contemplated by the Pricing Disclosure
Package; and (iv) will not offer or sell the Securities, nor
has it offered or sold the Securities by, or otherwise engaged in,
any form of general solicitation or general advertising (within the
meaning of Regulation D, including, but not limited to,
advertisements, articles, notices or other communications published
in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have
been invited by any general solicitation or general
advertising).
Each of the Initial Purchasers understands that
the Company and, for purposes of the opinions to be delivered to
the Initial Purchasers pursuant to Sections 7(c) and
7(d) hereof, counsel to the Company and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements, and the Initial
Purchasers hereby consent to such reliance.
4.
Delivery
of the Securities and Payment Therefor . Delivery to the
Initial Purchasers of and payment for the Firm Securities shall be
made at the office of Gibson, Dunn & Crutcher, 200 Park
Avenue, New York, New York, at 9:00 A.M., New York City time,
on June 17, 2008 (the “ Firm Closing Date
”). The place of closing for the Securities and the
Firm Closing Date may be varied by agreement between the Initial
Purchasers and the Company.
Payment for any Option Securities shall be made
to the Company against delivery of such Option Securities for the
respective accounts of the several Initial Purchasers at
9:00 A.M., New York City time, on the date
specified in the corresponding notice described in
Section 3(a) or at such other time on the same or on such
other date, as may be varied by agreement between the Initial
Purchasers and the Company. The date for delivery of and
payment for the Option Securities is herein referred to as an
“ Option Closing Date ,” which may be the Firm
Closing Date (the Firm Closing Date and each Option Closing Date,
if any, being referred to as a “ Closing Date
”).
The
Securities will be delivered to the Initial Purchasers, or the
Trustee as custodian for The Depository Trust Company (“
DTC ”), against payment by or on behalf of the Initial
Purchasers of the purchase price therefor by wire transfer in
immediately available funds, by
17
causing DTC to credit the applicable Securities
to the account of the Initial Purchasers at DTC. The
Securities will be evidenced by one or more global securities in
definitive form (the “ Global Securities ”) or
by additional definitive securities, and will be registered, in the
case of the Global Securities, in the name of Cede & Co.
as nominee of DTC, and in the other cases, in such names and in
such denominations as the Initial Purchasers shall request prior to
9:30 A.M., New York City time, on the second business day
preceding the Firm Closing Date or the Option Closing Date, as the
case may be. The Securities to be delivered to the Initial
Purchasers shall be made available to the Initial Purchasers in New
York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next
preceding the Firm Closing Date or the Option Closing Date, as the
case may be.
5.
Agreements of the Company . The Company agrees with
each of the Initial Purchasers as follows:
(a)
The Company will
furnish to the Initial Purchasers, without charge, within one
business day of the date of the Offering Memorandum, such number of
copies of the Offering Memorandum as may then be amended or
supplemented as they may reasonably request.
(b)
The Company will
not make any amendment or supplement to the Pricing Disclosure
Package or to the Offering Memorandum of which the Initial
Purchasers shall not previously have been advised or to which they
shall reasonably object after being so advised.
(c)
The Company
consents to the use of the Pricing Disclosure Package and the
Offering Memorandum in accordance with the
|
