EXHIBIT 4.3
INVITROGEN
CORPORATION
$450,000,000
Principal Amount
1.5% Convertible Senior Notes due
2024
Purchase Agreement
February 12, 2004
UBS SECURITIES LLC
BEAR, STEARNS & CO.
INC.
1.5% Convertible Senior Notes due
2024
INVITROGEN CORPORATION
PURCHASE AGREEMENT
February 12, 2004
UBS SECURITIES LLC
BEAR, STEARNS & CO. INC.
c/o UBS Securities LLC
299 Park Avenue
New York, N.Y. 10171
Dear Sirs:
Invitrogen Corporation, a Delaware
corporation (the “ Company ”), proposes
to issue and sell to UBS SECURITIES LLC (“UBS”) and
Bear, Stearns & Co. Inc. (each an “ Initial
Purchaser ” and, collectively, the “
Initial Purchasers ”) an aggregate of
$450,000,000 in principal amount of its 1.5% Convertible Senior
Notes due 2024 (the “ Firm Notes ”),
subject to the terms and conditions set forth herein. The Company
also proposes to issue and sell to the Initial Purchasers not more
than an additional $67,500,000 principal amount of its 1.5%
Convertible Senior Notes due 2024 (the “ Additional
Notes ”), if requested by the Initial Purchasers as
provided in Section 2 hereof. The Firm Notes and the Additional
Notes are herein collectively referred to as the “
Notes ”. The Notes are to be issued pursuant to
the provisions of an indenture (the “ Indenture
”), to be dated as of the Closing Date (as defined below),
between the Company, and U.S. Bank National Association, as trustee
(the “ Trustee ”), pursuant to which the
Notes, as provided therein, will be convertible at the option of
the holders thereof into shares of the Company’s common
stock, par value $0.01 per share (the “ Common
Stock ”). The Notes and the Common Stock issuable
upon conversion thereof are herein collectively referred to as the
“ Securities ”. The Securities and the
Indenture are more fully described in the Offering Memorandum (as
hereinafter defined). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the
Indenture.
1. Offering Memorandum
. The Notes will be offered and sold to the Initial Purchasers
pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the
“ Act ”). The Company has prepared a
preliminary offering memorandum, dated February 12, 2004 (the
“ Preliminary Offering Memorandum ”) and
a final offering memorandum, dated February 12, 2004 (the “
Offering Memorandum ” and together with the
Preliminary Offering Memorandum and all other documents and reports
incorporated therein by
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reference, the “ Offering
Document ”), relating to the Notes. The
Company’s Annual Report on Form 10-K most recently filed with
the Commission and all subsequent reports which have been filed by
the Company with the Commission or sent to stockholders pursuant to
the Exchange Act prior to the date hereof are collectively referred
to as the “ Exchange Act Reports
.”
Upon original issuance thereof, and
until such time as the same is no longer required pursuant to the
Indenture, the Notes (and all securities issued in exchange
therefor, in substitution thereof or upon conversion thereof) shall
bear a legend substantially as follows:
“THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
“SECURITIES ACT”), AND THIS SECURITY AND THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH
OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
THE HOLDER OF THIS SECURITY IS
ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.”
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2. Agreements to Sell and
Purchase .
(a) On the basis of the
representations, warranties and covenants contained in this
Agreement, and subject to the terms and conditions contained
herein, the Company agrees to issue and sell to the Initial
Purchasers, and the Initial Purchasers agree, severally and not
jointly, to purchase from the Company, the principal amount of Firm
Notes set forth opposite its name as set forth on Schedule A hereto
at a purchase price equal to 98% of the principal amount thereof
(the “ Purchase Price ”).
(b) On the basis of the
representations and warranties contained in this Agreement, and
subject to its terms and conditions, (i) the Company agrees to
issue and sell the Additional Notes and (ii) the Initial Purchasers
shall have a right, but not the obligation, to purchase, severally
and not jointly, the Additional Notes, from the Company at the
Purchase Price. The Initial Purchasers may exercise their right to
purchase Additional Notes in whole or in part from time to time by
giving written notice of such election to exercise this option not
later than 11 days after the Closing Date. UBS shall give any such
notice on behalf of the Initial Purchasers and such notice shall
specify the aggregate principal amount of Additional Notes to be
purchased pursuant to such exercise and the date for payment and
delivery thereof. The purchase date specified in any such notice
shall be a business day (i) no earlier than the Closing Date (as
hereinafter defined) and (ii) two (2) business days after such
notice has been given. If any Additional Notes are to be purchased,
each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company the principal amount of Additional Notes
which bears the same proportion to the total principal amount of
Additional Notes to be purchased from the Company as the principal
amount of Firm Notes set forth opposite the name of such Initial
Purchaser in Schedule A bears to the total principal amount of Firm
Notes.
3. Terms of Offering .
The Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the “ Exempt
Resales ”) of the Notes purchased hereunder on the
terms set forth in the Offering Memorandum, as amended or
supplemented, solely to persons whom the Initial Purchasers
reasonably believe to be “qualified institutional
buyers” as defined in Rule 144A under the Act (“
QIBs ”) (such persons being referred to herein
as the “ Eligible Purchasers ”). The
Initial Purchasers will offer the Notes to Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof
(plus accrued interest, if applicable). Such price may be changed
at any time without notice.
Holders (including subsequent
transferees) of the Securities will have the registration rights
set forth in the registration rights agreement (the “
Registration Rights Agreement ”), to be dated
the Closing Date, in substantially the form of Exhibit A
hereto, for so long as such Securities constitute “
Transfer Restricted Securities ” (as defined in
the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the “
Commission ”) under the circumstances set forth
therein, a shelf registration statement pursuant to Rule 415 under
the Act (the “ Registration Statement ”)
relating to the resale by certain holders of the Securities and to
use its best efforts to cause such Registration Statement to be
declared and remain effective and usable for the periods specified
in the Registration Rights Agreement. This Agreement, the
Indenture, the Notes, and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the “
Operative Documents .”
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4. Delivery and
Payment .
(a) Delivery of, and payment of the
Purchase Price for, the Firm Notes shall be made at the offices of
Gray Cary Ware & Freidenrich LLP, 4365 Executive Drive, Suite
1100, San Diego, California 92121-2189 or such other location as
may be mutually acceptable. Such delivery and payment shall be made
at 9:00 a.m. New York City time, on February 19, 2004 or at such
other time on the same date or such other date as shall be agreed
upon by the Initial Purchasers and the Company in writing. The time
and date of such delivery and the payment for the Firm Notes are
herein called the “ Closing Date
”.
(b) Delivery of, and payment for,
any Additional Notes to be purchased by the Initial Purchasers
shall be made at the offices of Gray Cary Ware & Freidenrich
LLP, 4365 Executive Drive, Suite 1100, San Diego, California
92121-2189 at 9:00 a.m. New York City time, on the date specified
in the exercise notice given by UBS pursuant to Section 2(b) or
such other time on the same or such other date as the Initial
Purchasers and the Company shall agree in writing. The time and
date of delivery and payment for any Additional Notes are
hereinafter referred to as an “ Option Closing
Date .”
(c) One or more of the Notes in
definitive global form, registered in the name of Cede & Co.,
as nominee of the Depository Trust Company (“
DTC ”), having an aggregate principal amount
corresponding to the aggregate principal amount of the Notes
(collectively, the “ Global Note ”),
shall be delivered by the Company to the Initial Purchasers (or as
the Initial Purchasers direct) in each case with any transfer taxes
thereon duly paid by the Company against payment by the Initial
Purchasers of the Purchase Price thereof by wire transfer in same
day funds to the order of the Company. The Global Note shall be
made available to the Initial Purchasers for inspection not later
than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. Agreements of the
Company . The Company hereby agrees with the Initial
Purchasers as follows:
(a) To advise the Initial Purchasers
promptly and, if requested by the Initial Purchasers, confirm such
advice in writing, (i) of the issuance by any state securities
commission of any stop order suspending the qualification or
exemption from qualification of any Notes for offering or sale in
any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(d) hereof, or the initiation of any proceeding by any
state securities commission or any other federal or state
regulatory authority for such purpose and (ii) of any proposal to
amend or supplement the Offering Document and the Company will not
effect such amendment or supplementation without UBS’
consent, which consent shall not be unreasonably withheld or
delayed. If, at any time prior to the completion of the resale of
the Notes by the Initial Purchasers, any event occurs as a result
of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, the Company promptly will notify UBS of such
event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission.
Neither UBS’ consent to, nor the Initial Purchasers’
delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 9.
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The Company shall use its best
efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Notes under any
state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory
authority shall issue an order suspending the qualification or
exemption of any Notes under any state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish the Initial
Purchasers and those persons identified by the Initial Purchasers
to the Company as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, any documents incorporated
by reference therein, and any amendments or supplements thereto, as
the Initial Purchasers may reasonably request at any time prior to
the completion of the resale of the Notes by the Initial
Purchasers. Subject to the Initial Purchasers’ compliance
with its representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, any
documents incorporated by reference therein, and any amendments and
supplements thereto required pursuant hereto, by the Initial
Purchasers in connection with Exempt Resales.
(c) If, at any time prior to the
completion of the resale of the Notes by the Initial Purchasers,
any event shall occur or condition shall exist as a result of
which, in the opinion of counsel to the Initial Purchasers, it
becomes necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the
circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of
counsel to the Initial Purchasers, it is necessary to amend or
supplement the Offering Memorandum to comply with any applicable
law, forthwith to prepare an appropriate amendment or supplement to
such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that
such Offering Memorandum will comply with applicable law, and to
furnish to the Initial Purchasers and such other persons as the
Initial Purchasers may designate such number of copies thereof as
the Initial Purchasers may reasonably request.
(d) Prior to the sale of all Notes
pursuant to Exempt Resales as contemplated hereby, to cooperate
with the Initial Purchasers and counsel to the Initial Purchasers
in connection with the registration or qualification of the Notes
for offer and sale to the Initial Purchasers and pursuant to Exempt
Resales under the securities or Blue Sky laws of such jurisdictions
as the Initial Purchasers may reasonably request and to continue
such registration or qualification in effect so long as required
for Exempt Resales and to file such consents to service of process
or other documents as may be necessary in order to effect such
registration or qualification; provided, however , that the
Company shall not be required in connection therewith to qualify as
a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters
and transactions relating to the Preliminary Offering Memorandum,
the Offering Memorandum or Exempt Resales, in any jurisdiction in
which it is not now so subject.
(e) So long as the Notes are
outstanding, (i) to mail or make generally available as soon as
practicable after the end of each fiscal year to the record holders
of the Notes a financial report of the Company and its subsidiaries
on a consolidated basis (and a similar financial
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report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations,
a consolidated statement of cash flows and a consolidated statement
of shareholders’ equity as of the end of and for such fiscal
year, together with comparable information as of the end of and for
the preceding year, certified by the Company’s independent
public accountants and (ii) to mail or make generally available as
soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders,
a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows (and similar
financial reports of all unconsolidated subsidiaries, if any) as of
the end of and for such period, and for the period from the
beginning of such year to the close of such quarterly period,
together with comparable information for the corresponding periods
of the preceding year.
(f) So long as the Notes are
outstanding, to furnish to the Initial Purchasers as soon as
available, copies of all reports or other communications furnished
by the Company to its security holders or furnished to or filed
with the Commission or any national securities exchange on which
any class of securities of the Company is listed and such other
publicly available information concerning the Company and/or its
subsidiaries as the Initial Purchasers may reasonably
request.
(g) So long as any of the Notes
remain outstanding and during any period in which the Company is
not subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the “ Exchange Act
”), to make available to any holder of Securities in
connection with any sale thereof and any prospective purchaser of
such Securities from such holder, the information (“
Rule 144A Information ”) required by Rule
144A(d)(4) under the Act.
(h) Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all reasonable expenses
incident to the performance of the obligations of the Company under
this Agreement, including: (i) the reasonable fees, disbursements
and expenses of counsel to the Company and accountants of the
Company in connection with the sale and delivery of the Notes to
the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering
Memorandum, the Offering Memorandum and all amendments and
supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof
to the Initial Purchasers and persons designated by them in the
quantities specified herein, (ii) all costs and expenses related to
the transfer and delivery of the Notes to the Initial Purchasers
and pursuant to Exempt Resales, including any transfer or other
taxes payable thereon, (iii) all costs of printing or producing
this Agreement, the other Operative Documents and any other
agreements or documents in connection with the offering, purchase,
sale or delivery of the Securities (other than the fees,
disbursements and expenses of counsel to the Initial Purchasers,
except as provided in clause (iv) below), (iv) all expenses in
connection with the registration or qualification of the Securities
for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and reasonable fees and
disbursements of counsel for the Initial Purchasers in connection
with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the
Securities, (vi) all expenses and listing fees in connection with
the application for quotation of the Notes in the National
Association of Securities Dealers, Inc.
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(“ NASD ”)
Automated Quotation System - PORTAL (“ PORTAL
”), (vii) the fees and expenses of the Trustee and the
Trustee’s counsel in connection with the Indenture and the
Notes, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (ix) any fees charged
by rating agencies for the rating of the Notes, (x) all costs and
expenses of the Registration Statement, as set forth in the
Registration Rights Agreement, (xi) all expenses and listing fees
in connection with the application for listing the Common Stock on
the Nasdaq Stock Market’s National Market (the “
Nasdaq National Market ”) and (xii) and all
other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section.
(i) To use its best efforts to
effect the inclusion of the Notes in PORTAL and to maintain the
listing of the Notes on PORTAL for so long as the Notes are
outstanding.
(j) To obtain the approval of DTC
for “book-entry” transfer of the Notes, and to comply
with all of its agreements set forth in the representation letters
of the Company to DTC relating to the approval of the Notes by DTC
for “book-entry” transfer.
(k) To cause the Common Stock
issuable upon conversion of the Notes to be duly included for
quotation on the Nasdaq National Market prior to the Closing Date
subject to notice of official issuance. The Company will ensure
that such Common Stock remain included for quotation on the Nasdaq
National Market or any other national securities exchange following
the Closing Date for so long as any shares of Common Stock remain
registered under the Exchange Act.
(l) The Company shall not (i) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for any
shares of Common Stock, including options, warrants or other rights
to purchase shares of Common Stock or publicly disclose the
intention to make any such offer, sale, pledge, disposition or
filing, or (ii) enter into any swap or other arrangement that
transfers, in whole or in part, any of the economic consequences
associated with the ownership of any Common Stock (regardless of
whether any of the transactions described in clause (i) or (ii) is
to be settled by the delivery of Common Stock, or such other
securities, in cash or otherwise), except to the Initial Purchasers
pursuant to this Agreement, for a period of 90 days after the
Closing Date without the prior written consent of UBS.
Notwithstanding the foregoing, during such period (i) the Company
may grant stock and stock options pursuant to the Company’s
existing stock option plans or other employee benefit plans and may
issue shares of Common Stock upon the exercise of such options and
make additional inducement grants of restricted stock to new
employees, (ii) the Company may issue shares of Common Stock upon
the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof (including the Notes), and
(iii) the Company may issue shares of Common Stock in connection
with acquisitions of companies and businesses. Other than pursuant
to the Registration Rights Agreement, the Company also agrees not
to file any registration statement with the Commission with respect
to any shares of Common Stock, or any registration statement
relating to any U. S. dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one
year from the date of issue, or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90
days after the
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Closing Date without the prior
written consent of UBS. The Company shall, prior to or concurrently
with the execution of this Agreement, deliver an agreement in the
form of Schedule C hereto executed by each of the directors and
officers of the Company listed on Schedule D hereto. The Company
agrees that with respect to the transfer of shares of Common Stock
pursuant to the agreements in the form of Schedule C by each of the
persons listed on Schedule D, the Company shall not consent to the
transfer of more than an aggregate of 500,000 shares of Common
Stock with respect to all of the persons listed on Schedule D on or
prior to 90 days after the date of the Offering
Memorandum.
(m) Not to sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Act) that would be integrated with the
sale of the Notes to the Initial Purchasers or pursuant to Exempt
Resales in a manner that would require the registration of any such
sale of the Notes under the Act.
(n) Not to voluntarily claim, and to
actively resist any attempts to claim, the benefit of any usury
laws against the holders of any Notes.
(o) To comply with all of its
agreements set forth in the Registration Rights
Agreement.
(p) To use its best efforts to do
and perform all things required or necessary to be done and
performed under this Agreement by it prior to the Closing Date and
to satisfy all conditions precedent to the delivery of the
Notes.
(q) Until the earlier of (i) the
second anniversary of the last Option Closing Date and (ii) the
first date of effectiveness of the registration statement to be
filed pursuant to the Registration Rights Agreement, the Company
will not, and will not permit any of its “controlled”
“affiliates” (as defined in Rule 405 under the
Securities Act) to, resell any of the Notes or the Common Stock
underlying the Notes that constitute “restricted
securities” under Rule 144 that have been reacquired by any
of them.
6. Representations, Warranties
and Agreements of the Company . As of the date hereof, the
Company represents and warrants to, and agrees with, the Initial
Purchasers that:
(a) The Offering Document does not,
and any supplement or amendment to it will not, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and
warranties contained in this paragraph (a) shall not apply to
statements in or omissions from the Offering Document (or any
supplement or amendment thereto) based upon information relating to
the Initial Purchasers furnished to the Company in writing by the
Initial Purchasers expressly for use therein as set forth in
Section 8(b) hereof. The Initial Purchasers shall not be deemed to
have provided any other information (and therefore are not
responsible for any statements or omissions related to such other
information). No stop order preventing the use of the Preliminary
Offering Memorandum or the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
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(b) Each of the Company and its
subsidiaries has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on
its business as described in the Offering Document and to own,
lease and operate its properties, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole (a “ Material Adverse
Effect ”).
(c) All outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights.
(d) The entities listed on Schedule
B hereto are the only subsidiaries, direct or indirect, of the
Company. All of the outstanding shares of capital stock of each of
the Company’s subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and are owned
by the Company, directly or indirectly through one or more
subsidiaries (except to the extent that the Company’s direct
or indirect ownership is less than 100% as set forth on Schedule B
hereto), free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a “
Lien ”).
(e) This Agreement has been duly
authorized, executed and delivered by the Company.
(f) The Indenture has been duly
authorized by the Company and, on the Closing Date, will have been
validly executed and delivered by the Company. When the Indenture
has been duly executed and delivered by the Company, the Indenture
will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and (ii)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability. On
the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as
amended (the “ TIA ” or “
Trust Indenture Act ”), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) The Notes have been duly
authorized and, on the Closing Date, will have been validly
executed and delivered by the Company. When the Notes have been
issued, executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement,
the Notes will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. On the
Closing Date, the Notes will conform as to legal matters to the
description thereof contained in the Offering
Memorandum.
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(h) The Notes are convertible into
Common Stock in accordance with the terms of the Indenture; the
shares of Common Stock initially issuable upon conversion of the
Notes have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable, will conform to the
description thereof contained in the Offering Memorandum and will
be duly authorized for listing on the Nasdaq National Market,
subject to notice of official issuance; the Company has the
authorized and outstanding capital stock as set forth in the
Offering Memorandum; and the stockholders of the Company or other
holders of the Company’s securities have no pre-emptive or
similar rights with respect to the Notes or the Common Stock
issuable upon the Notes.
(i) The Registration Rights
Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights agreement will be a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and (ii)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability. On
the Closing Date, the Registration Rights Agreement will conform as
to legal matters to the description thereof in the Offering
Memorandum.
(j) The authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in the Offering Memorandum.
(k) Neither the Company nor any of
its subsidiaries is in violation of its respective charter or
by-laws or in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property
is bound and that is material to the Company and its subsidiaries,
taken as a whole, except for such violations or defaults which,
singly or in the aggregate, would not have a Material Adverse
Effect.
(l) The execution, delivery and
performance of the Operative Documents by the Company, compliance
by the Company with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby
will not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue
Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or
any indenture, loan agreement, mortgage, 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 or their
respective property is bound and that is material to the Company
and its subsidiaries, taken as a whole, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their
respective property, (iv) result in the imposition or creation of
(or the obligation to create or impose) a Lien under, any 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 or their
respective property is bound, or (v) result in the termination,
suspension or revocation of any
10
Material Authorization (as defined
below) of the Company or any of its subsidiaries or result in any
other impairment of the rights of the holder of any such Material
Authorization, except for such conflicts, breaches, violations,
terminations, suspensions, revocations, Liens or defaults which,
singly or in the aggregate, would not have a Material Adverse
Effect.
(m) Except as disclosed in the
Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2003, there are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any of its
subsidiaries is or could be (in the case of threatened proceedings)
a party or to which any of their respective property is or could be
(in the case of threatened proceeding) subject, except for such
proceedings which, if decided adversely to the Company, would not
result, singly or in the aggregate, in a Material Adverse
Effect.
(n) The Company and its subsidiaries
have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by
them which is material to the business of the Company and its
subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Offering Memorandum or such as do not materially affect the value
of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Offering
Memorandum.
(o) The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, all patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (“
Intellectual Property ”) currently employed by
them in connection with the business now operated by them, except
where the failure to own or possess or otherwise be able to acquire
such Intellectual Property would not, singly or in the aggregate,
have a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of such
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(p) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its subsidiaries (i)
has received notice from any insurer or agent of such insurer that
substantial capital improvements or other material expenditures
will have to be made in order to continue such insurance or (ii)
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 at a cost that would
not have a Material Adverse Effect.
(q) Except as disclosed in the
Offering Document or the Company’s definitive Proxy Statement
filed with the Commission on March 17, 2003 or on Schedule E
attached hereto (except that Item 1 to Schedule E shall not be
included for purposes of this
11
representation), no relationship,
direct or indirect, exists between or among the Company or any of
its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required by the Act
to be described in the Offering Memorandum if the Offering
Memorandum were a prospectus included in a registration statement
on Form S-1 file with the Commission.
(r) The Company and each of its
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
September 30, 2003, neither the Company nor any of its subsidiaries
has made any change in its internal controls that would be
reportable in any filing under the Exchange Act pursuant to Item
307 of Regulation S-K.
(s) All material tax returns
required to be filed by the Company and each of its subsidiaries in
any jurisdiction have been filed, other than those filings being
contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its subsidiaries have
been paid, other than those being contested in good faith and for
which adequate reserves have been provided.
(t) Except for Item 6 on Schedule F
hereto, neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
any provis
