Exhibit 1.1
EXECUTION COPY
OMNICARE, INC.
12,825,000
Shares of Common Stock, Par Value $1.00 per Share
UNDERWRITING AGREEMENT
December 12, 2005
L EHMAN B ROTHERS I NC
.
J.P. M ORGAN S ECURITIES I NC .,
M ERRILL L YNCH ,
P IERCE , F ENNER & S MITH I NCORPORATED
As Representatives of the several
Underwriters
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Omnicare, Inc., a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and to sell to
Lehman Brothers Inc., J.P. Morgan Securities Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, the other
underwriters named in Schedule 1 hereto and any additional
underwriters pursuant to Section 10(a) herein (individually, each
an “ Underwriter ” and collectively, the “
Underwriters ”), for whom you are acting as
representatives (the “ Representatives ”),
12,825,000 shares (the “ Firm Shares ”) of
common stock, par value $1.00 per share (“ Common
Stock ”) of the Company. In addition, the Company
proposes to grant to the Underwriters an option (the “
Option ”) to purchase up to an additional 1,923,750
shares (the “ Option Shares ” and, together with
the Firm Shares, the “ Shares ”).
This is to confirm the agreement
between the Company and the Underwriters concerning the offer,
issuance and sale of the Shares.
1. Representations, Warranties and Agreements
of the Company . The Company represents and warrants to, and
agrees with, each Underwriter that:
(a) The Registration Statement on
Form S-3 (File No. 333-127616), including a related
prospectus, setting forth information with respect to the Company
and the Shares, has (i) been prepared by the Company in
conformity in all material respects with the requirements of the
Securities Act and the rules and regulations (the “ Rules
and Regulations ”) of the Commission thereunder,
(ii) been filed with the Commission under the Securities Act
and (iii) become effective under the Securities Act. Copies of
such Registration Statement and all amendments and exhibits thereto
have been made available by the Company to you. The Company has
included in such Registration Statement, as amended at the
Effective Time, all information (other
than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement and the related Prospectus. The Company will
next file with the Commission the Prospectus in accordance with
Rules 415 and 424(b). As filed, such Prospectus will contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Underwriters will agree
in writing to a modification, will be in all substantial respects
in the form furnished to you prior to the Applicable Time, or, to
the extent not completed at the Applicable Time, shall contain only
such additional information and other changes as the Company has
advised you, prior to the Applicable Time, will be included or made
therein or such changes as are made after consulting with you or
your counsel.
(b) As of December 1, 2005, the
Company has been and continues to be a “well-known seasoned
issuer” (as defined in Rule 405 of the Securities Act),
including not having been an “ineligible issuer” (as
defined in Rule 405 of the Securities Act) at any such time or
date.
(c) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will,
when they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the requirements
of the Securities Act. The Registration Statement and any amendment
thereto did not, and will not, as of the applicable Effective Date,
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The Prospectus does not and will
not, as of the date thereof and any applicable Delivery Date (as
defined in Section 4(c)), contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, it being understood that the Company makes no
representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company by the Underwriters specifically for inclusion
therein as provided in Section 9(e). The Pricing Disclosure
Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a 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; 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
Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 9(e).
(d) Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433 of the Securities Act), when
considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material
fact or omit to state a 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.
(e) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Company has complied
with any filing requirements applicable to such Issuer
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Free Writing Prospectus pursuant to the Rules
and Regulations. The Company has not made any offer relating to the
Shares that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives, except as
set forth on Schedule 2 hereto. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(f) The Incorporated Documents as
amended or supplemented at the date hereof, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Securities Act and the Exchange Act. None of
the Incorporated Documents as amended or supplemented at the date
hereof, when such documents were filed with the Commission,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. Any further documents so
filed and incorporated by reference in the Prospectus, when such
documents are filed with Commission will conform in all material
respects to the requirements of the Exchange Act and 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 light of the circumstances under
which they were made, not misleading.
(g) The Company has an authorized
capitalization as of September 30, 2005 as set forth under the
heading “Capitalization” in the Prospectus. Attached as
Schedule 3 hereto is a true and complete list of each
“significant subsidiary,” as defined by Rule 1-02 of
Regulation S-X under the Securities Act, of the Company,
together with its jurisdiction of incorporation or formation and,
if less than 100%, the percentage equity ownership by the Company
(direct or indirect) (all such entities, the “ Significant
Subsidiaries ”). All of the issued and outstanding shares
of capital stock or other equity interests of each of the
Significant Subsidiaries owned by the Company (directly or
indirectly) are owned free and clear of any liens (other than those
that could not reasonably be expected to have a material adverse
affect on the business, condition (financial or other), results of
operations or properties of the Company and its subsidiaries, taken
as a whole (a “ Material Adverse Effect ”)).
Except as set forth or referred to in the Prospectus, there are no
outstanding options, warrants or other rights to acquire or
purchase, or instruments convertible into or exchangeable for, any
shares of capital stock of the Company or any Significant
Subsidiary.
(h) Since December 31, 2004,
except as set forth or contemplated in the Prospectus,
(i) neither the Company nor any of its Significant
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and
(ii) there has not been any event or development in respect of
the business or condition (financial or other) of the Company and
its subsidiaries taken as a whole that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(i) Each of the Company and the
Significant Subsidiaries (i) is a corporation, limited
liability company, partnership or other entity duly organized and
validly existing under the laws of the jurisdiction of its
organization, (ii) has all requisite corporate or other power
and authority, and has all governmental licenses, authorizations,
consents and approvals, necessary to own its property and carry on
its business as now being conducted, except if the failure to
obtain any
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such license, authorization, consent or approval
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect and (iii) is qualified to do
business and is in good standing in all jurisdictions in which the
nature of the business conducted by it makes such qualification
necessary and where failure to be so qualified and in good
standing, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(j) The Company has all requisite
corporate power and authority to execute, issue and deliver this
Agreement and to issue and deliver the Shares and to consummate the
transactions contemplated hereby to be consummated on its
part.
(k) Neither the Company nor any
Significant Subsidiary is (i) in violation of its charter,
bylaws or other constitutive documents, (ii) in default (or,
with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture,
mortgage, deed of trust, loan or credit agreement, lease, license,
franchise agreement, authorization, permit, certificate or other
agreement or instrument to which any of them is a party or by which
any of them is bound or to which any of their assets or properties
is subject (collectively, “ Agreements and Instruments
”) or (iii) in violation of any law, statute, rule,
regulation, judgment, order or decree of any domestic or foreign
court with jurisdiction over any of them or any of their assets or
properties or other governmental or regulatory authority, agency or
other body, which, in the case of clauses (ii) and (iii),
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(l) None of the issuance, offer and
sale of the Shares, the execution, delivery and performance of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby violate or will violate, conflict
with or constitute a breach of any of the terms or provisions of or
a default under (or an event that with notice or the lapse of time,
or both, would constitute a default), or require consent under, or
result in the creation or imposition of a lien, charge or
encumbrance on any property or assets of the Company or any
Significant Subsidiary pursuant to, (i) the charter, bylaws or
other constitutive documents of the Company or any Significant
Subsidiary, (ii) any law, statute, rule or regulation
applicable to the Company or any Subsidiary or their respective
assets or properties or (iii) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority
having jurisdiction over the Company or any Significant Subsidiary
or their respective assets or properties, which, in the case of
clauses (ii), and (iii), individually or in the aggregate, could
reasonably be expected to have a Material Adverse
Effect.
(m) This Agreement has been duly
authorized, executed and delivered by the Company.
(n) The Shares have been duly and
validly authorized and when issued will be validly issued, fully
paid and nonassessable.
(o) No consent, approval,
authorization or order of, or filing, registration, qualification,
license or permit of or with, any court or governmental agency,
body or administrative agency, domestic or foreign, is required to
be obtained or made by the Company for the execution, delivery and
performance by the Company of this Agreement including
the
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consummation of any of the transactions
contemplated hereby, except such as have been or will be obtained,
made, or waived on or prior to the First Delivery Date, those under
Blue Sky laws and regulations, those required by the National
Association of Securities Dealers, Inc. (the “ NASD
”) or those that if not obtained, made, or waived could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No consents or waivers from any other
person or entity are required for the execution, delivery and
performance of this Agreement or the consummation of any of the
transactions contemplated hereby, other than such consents and
waivers as have been obtained or will be obtained on or prior to
the First Delivery Date and will be in full force and effect or
except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(p) Except as set forth in the
Prospectus, there is no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the knowledge of the
Company, threatened or contemplated, to which the Company or any
Significant Subsidiary is or may be a party or to which the
business, assets or property of such person is or may be subject,
that if determined adversely to the Company or any Significant
Subsidiary, could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or to materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement. Except as set forth in the
Prospectus, there is (i) no statute, rule, regulation or order
that has been enacted, adopted or issued or, to the knowledge of
the Company, that has been proposed by any governmental body or
agency, domestic or foreign or (ii) no injunction, restraining
order or order of any nature by a federal or state court or foreign
court of competent jurisdiction to which the Company or any
Significant Subsidiary is or may be subject that in the case of
clauses (i) and (ii) could, individually or in the
aggregate, reasonably be expected, to have a Material Adverse
Effect or to materially and adversely affect the ability of the
Company to perform its obligations under this Agreement. Any
request of any securities authority or agency of any jurisdiction
for additional information with respect to any of the Shares that
has been received by the Company or its counsel prior to the date
hereof has been, or will prior to the First Delivery Date be,
complied with in all material respects.
(q) The Company and each Significant
Subsidiary has (i) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and
has made all declarations and filings with, all applicable
authorities, all self-regulatory authorities and all courts and
other tribunals (each, an “ Authorization ”)
necessary to engage in the business conducted by it in the manner
described in the Prospectus, except where failure to have obtained
such Authorizations or made such declarations and filings could
not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect and (ii) no reason to believe
that any governmental body or agency, domestic or foreign, is
considering limiting, suspending or revoking any such
Authorization, except where any such limitations, suspensions or
revocations could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. All such
Authorizations are valid and in full force and effect and the
Company and each Significant Subsidiary is in compliance in all
material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such
Authorizations, except for any invalidity, failure to be in full
force and effect or noncompliance with any Authorization that could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
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(r) The Company is not, nor after
the offering and sale of the Shares will be, an “investment
company” or a company “controlled” by an
“investment company” incorporated in the United States
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ Investment Company Act
”).
(s) The Company and each of its
Significant 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 accountability for assets; (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 thereto.
(t) The Company on a consolidated
basis maintains insurance covering its properties, personnel and
business. Such insurance insures against such losses and risks as
are adequate in accordance with the Company’s perception of
customary industry practice to protect the Company and its
Significant Subsidiaries and their businesses.
(u) PricewaterhouseCoopers LLP is an
independent accountant within the meaning of the Securities Act.
The historical financial statements and the notes thereto included
in the Prospectus present fairly in all material respects the
consolidated financial position and results of operations of the
Company at the respective dates and for the respective periods
indicated. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods presented (except as
disclosed in the Prospectus). The pro forma financial statements
and the notes thereto included in the most recent Preliminary
Prospectus include assumptions that are reasonable, the related pro
forma adjustments are appropriate to give effect to the
transactions and circumstances described therein, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma
financial statements included or incorporated by reference in the
most recent Preliminary Prospectus. The pro forma financial
statements included or incorporated by reference in the most recent
Preliminary Prospectus have been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act.
The other financial information included in the Prospectus is
accurately presented in all material respects and, except as
disclosed in the Prospectus, prepared on a basis consistent with
the financial statements and the books and records of the Company.
There are no financial statements (historical or pro forma) that
are required to be included or incorporated by reference in the
Prospectus that are not so included or incorporated by reference as
required.
(v) The Company, including its
subsidiaries, has the requisite provider number or other
authorization to bill the Medicare program (to the extent such
entity participates in the Medicare program) and the respective
Medicaid program in the state or states in which it operates,
except where the failure to have such provider number or other
authorization could not be reasonably expected to have a Material
Adverse Effect.
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(w) Neither the Company, nor to its
knowledge, any of its affiliates (as defined in Regulation D of the
Securities Act, an “ Affiliate ”), has taken,
directly or indirectly, any 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
Shares to facilitate the sale or resale of such Shares.
(x) The statistical and
market-related data included in the Prospectus are based on or
derived from sources that the Company believes to be reliable and
accurate in all material respects.
(y) The Company has not distributed
and, prior to the later to occur of any Delivery Date and
completion of the distribution of the Shares, will not distribute
any offering material in connection with the offering and sale of
the Shares other than any Preliminary Prospectus, the Prospectus
and any Issuer Free Writing Prospectus to which the Representatives
have consented in accordance with Section 1(e) or 5(f) and any
Issuer Free Writing Prospectus set forth on Schedule 2
hereto.
Each certificate signed by any officer of the
Company and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by
the Company to the Underwriters as to the matters covered
thereby.
2. Purchase of the Shares by the
Underwriters . On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Company agrees to sell to the Underwriters,
and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the number of Firm Shares set forth
opposite that Underwriter’s name in Schedule 1 hereto. The
price of the Firm Shares shall be $57.9284 per Firm Share. The
Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date except upon payment for all the
Shares to be purchased on the Delivery Date as provided
herein.
3. Offering of Shares by the Underwriters
. The several Underwriters propose to offer the Shares for sale
upon the terms and conditions set forth in the
Prospectus.
4. Delivery of and Payment for
the Shares .
(a) Delivery of and payment for the
Firm Shares shall be made at the office of Dewey Ballantine LLP,
1301 Avenue of the Americas, New York, New York 10019, at 9:00 a.m.
(New York City time) on December 15, 2005, or at such other date or
place as shall be determined by agreement between the Underwriters
and the Company (such date and time of delivery and payment for the
Firm Shares, the “ First Delivery Date ”). On
the First Delivery Date, the Company shall deliver or cause to be
delivered the Firm Shares to the Underwriters for the account of
each Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon
delivery, the Shares shall be registered in such names and in such
numbers as the Representatives shall request in writing not less
than two full Business Days prior to the First Delivery
Date.
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(b) The Company hereby grants the
Option to the Underwriters to purchase the Option Shares at the
same purchase price as the Underwriters shall pay for the Firm
Shares. The Option may be exercised in whole or in part from time
to time at any time not more than 30 days subsequent to the date of
this Agreement upon notice in writing delivered by facsimile by
Lehman Brothers Inc. (“ Lehman Brothers ”), on
behalf of itself and the other Underwriters to the Company setting
forth the number of Option Shares as to which the Underwriters are
exercising the Option.
(c) The date for the delivery of and
payment for the Option Shares (the “ Option Delivery
Date ”), which may be the First Delivery Date (the First
Delivery Date and the Option Delivery Date, if any, being sometimes
referred to as a “ Delivery Date ”), shall be
determined by the Underwriters but shall not be later than five
full Business Days after written notice of election to purchase
Option Shares is given. On the Option Delivery Date, the Company
shall deliver or cause to be delivered the Option Shares to the
Underwriters for the account of each Underwriter against payment to
or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Upon delivery, the Shares
shall be registered in such names and in such numbers as the
Representatives shall request in writing not less than two full
Business Days prior to the Option Delivery Date. If the Option
Delivery Date shall be different from the First Delivery Date, the
obligation of the Underwriters to purchase the Option Shares shall
be conditioned upon receipt of supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the First Delivery Date pursuant to
Section 7 hereof.
5. Further Agreements of the Company and the
Underwriters .
(A) The Company further agrees:
(a) (i) To prepare the Prospectus in
a form approved by Lehman Brothers, which approval shall not be
unreasonably withheld or delayed, and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than
Commission’s close of business on the second Business Day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; (ii) to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior
to any Delivery Date except as permitted herein; (iii) to advise
the Underwriters, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; (iv) to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; (v)
to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus,
of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or
for additional information; and (vi) in the
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event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus or
suspending any such qualification, to use promptly its reasonable
best efforts to obtain its withdrawal;
(b) To furnish promptly to the
Underwriters and to counsel for the Underwriters if requested a
signed or facsimile signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the
Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits),
(ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus, and (iii) each Issuer Free
Writing Prospectus; and, if the delivery of a prospectus is
required at any time after the Applicable Time in connection with
the offering or sale of the Shares and if at such time any events
shall have occurred as a result of which the Prospectus 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 when such Prospectus is
delivered, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Underwriters and, upon their request,
to prepare and furnish without charge to the Underwriters and to
any dealer in securities as many copies of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance as the Underwriters may from
time to time reasonably request;
(d) During the time that delivery of
a prospectus is required for the initial offering and sale of
Shares (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act) to file
promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or Lehman
Brothers, be required by the Securities Act or that is requested by
the Commission;
(e) For as long as the delivery of a
prospectus is required in connection with the initial offering or
sale of the Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the Securities
Act) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus and any document incorporated by reference in the
Prospectus pursuant to Rule 424 of the Securities Act, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of Lehman Brothers, which consent shall not
unreasonably be withheld;
(f) Not to make any offer relating
to the Shares that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the
Representatives; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectuses in Schedule 2 hereto.
(g) To retain in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses not
required to be filed pursuant to the Rules and Regulations; and if
at any time
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after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus,
as then amended or supplemented, would conflict with the
information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or 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, or,
if for any other reason it shall be necessary to amend or
supplement any Issuer Free Writing Prospectus, to notify the
Representatives and, upon their request and to the extent required
by applicable law, to file such document and to prepare and furnish
without charge to each Underwriter as many copies as the
Representatives may from time to time reasonably request of an
amended or supplemented Issuer Free Writing Prospectus that will
correct such conflict, statement or omission or effect such
compliance;
(h) As soon as practicable after the
Effective Date, to make generally available to the Company’s
security holders and to deliver to the Underwriters an earnings
statement of the Company and its consolidated subsidiaries (which
need not be audited) complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
of the Securities Act);
(i) Promptly from time to time, to
take such action as Lehman Brothers may reasonably request to
qualify the Shares for offering and sale under the securities laws
of such jurisdictions in the United States and Canada as Lehman
Brothers may reasonably request and in such other jurisdictions as
the Company and Lehman Brothers may mutually agree, and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares; provided
that, in connection therewith, 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; or subject itself to
taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(j) Not to take, directly or
indirectly, any action which is designed to stabilize or
manipulate, or which constitutes or which might reasonably be
expected to cause or result in stabilization or manipulation, of
the price of any security of the Company in connection with the
initial offering of the Shares (except after consultation with the
Underwriters and as may be permitted by un
