PURCHASE AGREEMENT

 

Act ”), in reliance on exemptions from the registration requirements of the Securities Act.  The Initial Purchasers have advised the Company that the Initial Purchasers will offer and sell the Securities purchased by them hereunder (the “ Offering ”) in accordance with Section 3 hereof as soon as they deem advisable.

 

In connection with the Offering, the Company has prepared a preliminary Offering Memorandum dated May 31, 2005 (including the information incorporated by reference therein, the “ Preliminary Offering Memorandum ”) and a final Offering Memorandum, dated June 2, 2005 (including the information incorporated by reference therein, the “ Offering Memorandum ”).  Each of the Preliminary Offering Memorandum and the Offering Memorandum sets forth or incorporates by reference certain information regarding the Company, the Securities and the Underlying Securities.  The Company hereby confirms that it has authorized the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendment or supplement thereto, in connection with the Offering.  Unless stated to the contrary, all references herein to the Offering Memorandum are to the Offering Memorandum at the date thereof and are not meant to include any amendment or supplement, or any information incorporated by reference therein subsequent to the date thereof and any references herein to the terms “amend,” “amendment” or “supplement” with respect to the Offering Memorandum shall be deemed to refer to and include any information filed under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), subsequent to the date of the Offering Memorandum which is incorporated by reference therein.

 

In connection with the Offering, the Company also proposes to enter into a Registration Rights Agreement, to be dated as of the Closing Date, between the Company and the Initial Purchasers (the “ Registration Rights Agreement ”).

 

In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows:

 

1.                                        REPRESENTATIONS AND WARRANTIES OF THE COMPANY .

 

The Company represents and warrants to each Initial Purchaser as follows:

 

(a)                                   the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum and to enter into and perform its obligations under this Agreement; each of the direct and indirect subsidiaries of the Company (each, a “ Subsidiary ” and collectively, the “ Subsidiaries ”), has been duly organized and is validly existing and in good standing under the

 

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laws of the jurisdiction of its organization, with the power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum; the Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole;

 

(b)                                  the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims, except those that are immaterial to the Company and the Subsidiaries taken as a whole; and, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into or exchange any securities for shares of capital stock of or ownership interests in the Subsidiaries are outstanding;

 

(c)                                   the Securities have been duly and validly authorized by all necessary corporate action on the part of the Company and, when executed by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Securities will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the Indenture and the Registration Rights Agreement;

 

(d)                                  the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of any preemptive or similar rights of any stockholder of the Company; the Underlying Securities have been duly authorized and reserved, and when issued upon conversion of the Securities will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of stockholders exist with respect to any of the Underlying Securities;

 

(e)                                   the execution and delivery of and the performance by the Company of its obligations under this Agreement have been duly and validly authorized by all necessary corporate action on the part of the

 

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Company, and this Agreement has been duly executed and delivered by the Company;

 

(f)                                     the execution and delivery of and the performance by the Company of its obligations under the Indenture have been duly and validly authorized by all necessary corporate action on the part of the Company and, when duly executed and delivered by the Company and the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and equitable principles of general applicability;

 

(g)                                  the execution and delivery of and the performance by the Company of its obligations under the Registration Rights Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and, when duly executed and delivered by the Company and the other parties thereto, the Registration Rights Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the extent that (x) enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and equitable principles of general applicability, and (y) any right to indemnification and contribution thereunder may be limited by applicable law;

 

(h)                                  the consolidated capitalization of the Company set forth under the caption “Capitalization” in the Offering Memorandum is true and correct as of the date thereof; all of the Underlying Securities conform to the description thereof contained in the Offering Memorandum in all material respects; the form of certificate for the shares of Common Stock conforms to the corporate law of the jurisdiction of the Company’s incorporation;

 

(i)                                      except as described in, incorporated by reference into or contemplated by the Offering Memorandum, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock;

 

(j)                                      each document filed, or to be filed, by the Company pursuant to the Exchange Act and incorporated, or to be incorporated,

 

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by reference in either the Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or supplement thereto) at the time filed with the Securities and Exchange Commission (the “ Commission ”) conformed, or will conform, in all material respects with the Exchange Act and the applicable rules and regulations thereunder; the Preliminary Offering Memorandum as of the date thereof did not, and the Offering Memorandum and any amendment or supplement thereto do not contain, and will not contain, any untrue statement of a material fact, and do not omit, and will not omit, any material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty as to statements or omissions made in the Preliminary Offering Memorandum, the Offering Memorandum or any amendment or supplement thereto in reliance upon and in conformity with written information relating to the Initial Purchasers furnished to the Company by the Initial Purchasers specifically for use therein;

 

(k)                                   the consolidated financial statements of the Company and the Subsidiaries, together with related notes and schedules, incorporated by reference in the Offering Memorandum, present fairly in all material respects the financial position and the results of operations and cash flows of the Company and its consolidated Subsidiaries, at the indicated dates and for the indicated periods; such financial statements and related notes and schedules have been prepared in accordance with generally accepted accounting principles in the United States, consistently applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made; the selected consolidated financial and other data of the Company and the Subsidiaries included in the Offering Memorandum presents fairly in all material respects the information shown therein and such data has been compiled on a basis consistent with that of the consolidated financial statements incorporated by reference in the Offering Memorandum;

 

(l)                                      Deloitte & Touche LLP, who have certified certain of the financial statements included or incorporated by reference in the Offering Memorandum, are independent public accountants with respect to the Company, as required by the Securities Act and the applicable rules and regulations thereunder;

 

(m)                                Except as disclosed or incorporated by reference in the Offering Memorandum, there is no action, suit, claim, proceeding or labor dispute pending or, to the knowledge of the Company, threatened against the Company or any of the Subsidiaries before any court or

 

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administrative agency or otherwise which, if determined adversely to the Company or any of its Subsidiaries, might result in a material adverse change in the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole (a “ Material Adverse Change ”), or prevent the consummation of the transactions contemplated hereby or in the Indenture, the Securities or the Registration Rights Agreement;

 

(n)                                  the Company and the Subsidiaries have good and marketable title to all of the properties and assets reflected in the consolidated financial statements hereinabove described or described in the Offering Memorandum, subject to no lien, mortgage, pledge, charge or encumbrance of any kind, except those reflected in such financial statements or described in the Offering Memorandum or which are not material in amount; the Company and the Subsidiaries occupy their leased properties under valid and binding leases;

 

(o)                                  the Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by such returns and all assessments received by them or any of them to the extent that such taxes have become due, except to the extent that any failure to so file or pay would not reasonably be expected to result in a Material Adverse Change; all tax liabilities have been adequately provided for in the consolidated financial statements of the Company, and the Company does not know of any actual or proposed additional material tax assessments;

 

(p)                                  since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business, and there has not been any material transaction entered into or any material transaction that is probable of being entered into by the Company or any of the Subsidiaries, other than transactions in the ordinary course of business and transactions described in the Offering Memorandum; neither the Company nor any of the Subsidiaries has any material contingent obligations which are not disclosed in the Company’s consolidated financial statements that are incorporated by reference in the Offering Memorandum;

 

(q)                                  neither the Company nor any of the Subsidiaries is or, with the giving of notice or lapse of time or both, will be, in violation of or in default under (i) its certificate of incorporation or bylaws or similar organizational documents or (ii) any indenture, mortgage, deed of trust,

 

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lease, contract or other agreement or instrument to which any of them is a party or to which any of them or any of their respective properties is bound (collectively, “ Contracts ”) and, solely with respect to this clause (ii), which violation or default would result in a Material Adverse Change;

 

(r)                                     the execution and delivery of this Agreement, the Securities, the Indenture and the Registration Rights Agreement by the Company, the issuance and sale of the Securities to the Initial Purchasers by the Company pursuant to this Agreement, the issuance by the Company of the Underlying Securities, and the consummation of the transactions contemplated in this Agreement, the Securities, the Indenture and the Registration Rights Agreement and the fulfillment of the terms hereof and thereof by the Company will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (i) any Contract, (ii) the certificate of incorporation or bylaws of the Company, or (iii) any law, order, rule, regulation, judgment, order, writ or decree of any court applicable to the Company or any Subsidiary or of any government, regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any Subsidiary, except, in the case of clauses (i) and (iii) to the extent that any such conflict, breach or default would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole;

 

(s)                                   each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body or under any agreement or instrument that the Company or any Subsidiary is a party to or is bound by or to which any of their properties or assets are subject necessary in connection with the execution and delivery by the Company of this Agreement, the Securities, the Indenture and the Registration Rights Agreement, the issuance and sale of the Securities to the Initial Purchasers by the Company pursuant to this Agreement, the issuance of the Underlying Securities and the consummation of the transactions contemplated in this Agreement, the Securities, the Indenture and the Registration Rights Agreement has been obtained or made and is in full force and effect, except for (i) the effectiveness of the Shelf Registration Statement (as such term is defined in the Registration Rights Agreement) under the Securities Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”), in each case as contemplated by the Registration Rights Agreement, and (ii) such additional steps as may be necessary to qualify the Securities for public offering by the Initial Purchasers under state securities or “Blue Sky” laws;

 

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(t)                                     all of the Securities have been designated by the New York Stock Exchange as PORTAL-eligible securities in accordance with the rules and regulations of the National Association of Securities Dealers, Inc. (the “ NASD ”);

 

(u)                                  the Company and each of the Subsidiaries hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Offering Memorandum;

 

(v)                                  the Company and the Subsidiaries each own or possess the right to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“ Intellectual Property ”) necessary to carry on their business in all material respects; none of the Company or any of the Subsidiaries has received notice of conflict with, and to the best knowledge of the Company none of the Company or any of the Subsidiaries has infringed, any Intellectual Property of any other person or entity, except to the extent that such conflict would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole; the Company has taken all reasonable steps necessary to secure interests in such Intellectual Property from its contractors; there are no outstanding options, licenses or agreements of any kind relating to the Intellectual Property of the Company that are material to the Company and its Subsidiaries taken as a whole; the Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property of any other person or entity that are material to the Company and its Subsidiaries taken as a whole; none of the technology employed by the Company has been obtained or is being used by the Company in violation of any contractual obligation binding on the Company or any of its officers, directors or employees or otherwise in violation of the rights of any persons; the Company has not received any written or oral communications alleging that the Company has violated, infringed or conflicted with, or, by conducting its business as set forth in the Offering Memorandum, would violate, infringe or conflict with, any of the Intellectual Property of any other person or entity, except to the extent that such violation, infringement or conflict would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole; the Company knows of no infringement by others of Intellectual Property owned by or licensed to the Company;

 

(w)                                neither the Company nor, to the Company’s knowledge, any of its affiliates, has taken or may take, directly or indirectly, any

 

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action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Securities;

 

(x)                                    the Company is not, and after giving effect to the offering and sale of the Securities contemplated hereunder and the application of the net proceeds from such sale as described in the Offering Memorandum will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “ Investment Company Act ”) and the applicable rules and regulations thereunder;

 

(y)                                  the Company and each of the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;

 

(z)                                    the Company and the Subsidiaries comply in all material respects with all Environmental Laws (as defined below), except to the extent that failure to comply with such Environmental Laws would not, individually or in the aggregate, have a material adverse effect on the Company and the Subsidiaries taken as a whole; except as disclosed or incorporated by reference in the Offering Memorandum, none of the Company or any of the Subsidiaries is the subject of any pending or threatened federal, state or local investigation evaluating whether any remedial action by the Company or any of the Subsidiaries is needed to respond to a release of any Hazardous Materials (as defined below) into the environment resulting from the Company’s or any of the Subsidiaries’ business operations or ownership or possession of any of their properties or assets, or is in contravention of any Environmental Law that could reasonably be expected, individually or in the aggregate, to result in any material adverse effect on the Company and the Subsidiaries, taken as a whole; except as disclosed or incorporated by reference in the Offering Memorandum, none of the Company or any of the Subsidiaries has received any notice or claim, nor are there pending or threatened lawsuits against them, with respect to violations of an Environmental Law or in connection with any release of any Hazardous Material into the environment that could reasonably be expected in the

 

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aggregate to result in a material adverse effect on the Company and the Subsidiaries, taken as a whole; as used herein, “ Environmental Laws ” means any federal, state or local law or regulation applicable to the Company’s or any of the Subsidiaries’ business operation or ownership or possession of any of their properties or assets relating to environmental matters, and “ Hazardous Materials ” means those substances that are regulated by or form the basis of liability under any Environmental Laws;

 

(aa)                             the Company and each of its Subsidiaries carry, or are covered by, insurance 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;

 

(bb)                           the Company and each Subsidiary are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ ERISA ”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or any Subsidiary would have any liability; neither the Company nor any Subsidiary has incurred or expects to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “ Code ”); and each “pension plan” for which the Company or any Subsidiary would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification;

 

(cc)                             neither the Company, nor any of its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act, each, an “ Affiliate ”), nor any person acting on its or their behalf has, directly or indirectly, made offers or sales of any security (as defined in the Securities Act), or solicited offers to buy any security, under circumstances that would require the registration of the Securities or the Underlying Securities under the Securities Act;

 

(dd)                           neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf has engaged in any form of general solicitation or general advertising (as those terms are used in Rule

 

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502(c) of Regulation D under the Securities Act) in connection with any offer or sale of the Securities or the Underlying Securities;

 

(ee)                             the Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the Securities Act;

 

(ff)                                 the Company is subject to and in full compliance with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act;

 

(gg)                           the Securities, the Indenture, the Registration Rights Agreement each conform in all material respects to the descriptions thereof contained in the Offering Memorandum;

 

(hh)                           the purchase and sale of the Securities pursuant hereto (including the Initial Purchasers’ proposed offering of the Securities on the terms and in the manner set forth in the Offering Memorandum and Section 3 hereof) is exempt from the registration requirements of the Securities Act and does not require the qualification of an indenture under the Trust Indenture Act;

 

(ii)                                   there is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications; and

 

(jj)                                   no holder of securities of the Company (other than the Registrable Securities (as defined in the Registration Rights Agreement)) will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement.

 

2.                                        PURCHASE, SALE AND DELIVERY OF THE SECURITIES .

 

(a)                                   On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company agrees to issue and sell to the Initial Purchasers and the Initial Purchasers agree to purchase from the Company, at a purchase price of 97.0% of the aggregate principal amount thereof (the “ Purchase Price ”), plus accrued interest, if any, from June 8, 2005 to the Closing Date, the Firm Securities.  Each Security will be convertible at the option of the holder into the Underlying Securities at the conversion price set forth in the Securities (the “ Conversion Price ”), which Conversion Price is subject to adjustment in certain events as provided in the Securities and

 

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the Indenture.  One or more global securities representing the Firm Securities shall be registered by the Trustee in the name of the nominee of The Depository Trust Company (“ DTC ”), Cede & Co., credited to the accounts of the Initial Purchasers, and deposited with the Trustee as custodian for DTC on the Closing Date, against payment by or on behalf of the Initial Purchasers to the account of the Company of the aggregate Purchase Price therefor by wire transfer in immediately available funds.  Delivery of and payment for the Firm Securities shall be made at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304 at 9:30 A.M., New York City time, on the fourth full business day following the date of this Agreement, or at such other place, time or date not later than five business days thereafter as the Initial Purchasers and the Company may agree upon.  Such time and date of delivery against payment are herein referred to as the “ Closing Date ”.  (As used herein, “ business day ” means a day on which the Nasdaq National Market is open for trading and on which banks in New York are open for business and are not permitted by law or executive order to be closed.)

 

(b)                                  In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Initial Purchasers to purchase the Option Securities at the Purchase Price set forth in Section 2(a) plus accrued interest, if any, from June 8, 2005 to the Option Closing Date (as defined below).  The option granted hereby may be exercised in whole or in part (but not more than one time) by giving written notice at any time before the Closing Date and within 30 days after the Closing Date by Deutsche Bank Securities Inc. to the Company, setting forth the aggregate principal amount of Option Securities as to which the Initial Purchasers are exercising the option and the time and date for delivery of and payment for such Option Securities.  The time and date for delivery of and payment for such Option Securities shall be determined by Deutsche Bank Securities Inc. but shall not be later than ten full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “ Option Closing Date ”).  If the date of exercise of the option is two or more days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date.  Deutsche Bank Securities Inc. may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company.

 

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3.                          OFFERING BY THE INITIAL PURCHASERS .

 

(a)                                   It is understood that the Initial Purchasers will offer and sell the Securities in accordance with this Section 3 as soon as the Initial Purchasers deem it advisable to do so.  The Securities are to be initially offered at the offering price set forth in the Offering Memorandum.  The Initial Purchasers may from time to time thereafter change the price and other selling terms.

 

(b)                                  Each Initial Purchaser understands and acknowledges that the Securities and the Underlying Securities have not been and will not be registered under the Securities Act (except as contemplated by the Registration Rights Agreement) and may not be offered or sold, except in compliance with the registration requirements of the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.  Accordingly, each Initial Purchaser agrees that it will offer and sell the Securities only to persons that it reasonably believes to be qualified institutional buyers as defined in Rule 144A under the Securities Act.

 

(c)                                   Each Initial Purchaser agrees that neither it nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Securities Act) in connection with any offer or sale of the Securities in the United States.

 

4.                          COVENANTS OF THE COMPANY .

 

The Company covenants and agrees with the Initial Purchasers that:

 

(a)                                   The Company will furnish to the Initial Purchasers and counsel for the Initial Purchasers, without charge, during the period mentioned in paragraph (d) below, as many copies of the Preliminary Offering Memorandum and Offering Memorandum, any documents incorporated by reference therein and any supplements or amendments thereto as they may reasonably request.

 

(b)                                  The Company will not amend or supplement the Offering Memorandum, other than by filing documents under the Exchange Act which are incorporated by reference therein, and prior to the completion of the distribution of the Securities by the Initial Purchasers, the Company will not file any document under the Exchange Act which is incorporated by reference in the Offering Memorandum, unless the Initial Purchasers previously have been advised of and furnished with a copy within a reasonable period of time prior to the proposed filing and the Initial Purchasers shall have given their consent to such filing,

 

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except that such consent shall not be required in the case of filings required to be made on a Current Report on Form 8-K.  The Company will prepare promptly upon request by the Initial Purchasers or counsel for the Initial Purchasers any amendments or supplements to the Offering Memorandum that may be necessary or advisable in connection with the distribution of the Securities by the Initial Purchasers. The Company will advise the Initial Purchasers of the time when any amendment or supplement to the Offering Memorandum has been made or when any document filed under the Exchange Act which is incorporated by reference in the Offering Memorandum has been filed with the Commission and will provide evidence satisfactory to the Initial Purchasers of each such amendment, supplement or filing.

 

(c)                                   The Company will cooperate with the Initial Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably have designated in writing and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent.  The Company will, from time to time, prepare and file such statements, reports and other documents, as are or may be r