Exhibit 1.2
EXECUTION COPY
OMNICARE,
INC.
$850,000,000 3.25% Convertible Senior Debentures due
2035
UNDERWRITING AGREEMENT
December 12, 2005
J.P. M ORGAN S ECURITIES I NC .,
L EHMAN B ROTHERS I NC
.,
CIBC W ORLD M ARKETS C ORP .
As Representatives of the several
Underwriters
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
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
J.P. Morgan Securities Inc., Lehman Brothers Inc. and CIBC World
Markets Corp., 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 ”), $850,000,000 aggregate principal
amount of its 3.25% Convertible Senior Debentures due 2035 (the
“ Firm Debentures ”), to be issued pursuant to
the Indenture (the “ Indenture ”) to be entered
into among the Company, the Guarantor (as defined below) and
SunTrust Bank, as indenture trustee (in such capacity, the “
Indenture Trustee ”). In addition, the Company
proposes to grant the Underwriters an option (the “
Option ”) to purchase up to an additional $127,500,000
aggregate principal amount of Debentures (the “ Option
Debentures ” and together with the Firm Debentures, the
“ Debentures ”). The Company’s obligations
under the Debentures and the Indenture will be unconditionally
guaranteed (the “ Guarantee ”) on an unsecured
senior subordinated basis by Omnicare Purchasing Company L.P., as
guarantor (the “ Guarantor ” and, together with
the Company, the “ Issuers ”). The Debentures
are convertible into shares of common stock, par value $1.00 per
share (“ Common Stock ”) of the Company at the
conversion price set forth in the Indenture.
This is to confirm the agreement
among the Company, the Guarantor and the Underwriters concerning
the offer, issuance and sale of the Debentures.
1. Representations, Warranties and Agreements
of the Issuers . The Issuers jointly and severally represent
and warrant to, and agree 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,
the Debentures and the Guarantee, 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 and the Trust Indenture 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 the 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
Issuers make 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).
2
(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 Free Writing
Prospectus pursuant to the Rules and Regulations. The Company has
not made any offer relating to the Debentures 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
3
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 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 the
Indenture, this Agreement and the Debentures and to consummate the
transactions contemplated thereby to be consummated on its part,
and the Guarantor has all requisite corporate power and authority
to execute, issue and deliver the Indenture, this Agreement and the
Guarantee and to consummate the transactions contemplated thereby
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 Debentures and the Guarantee, the execution, delivery
and performance of this Agreement and the Indenture by the Issuers,
or the consummation by the Issuers, of the transactions
contemplated by this Agreement and the Indenture, as applicable,
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
4
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) The Indenture has been duly
authorized by the Company and will be duly executed and delivered
by the Company and will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, enforceable against the Guarantor in accordance with its
terms, in each case except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought (such exceptions, collectively, the “
Standard Qualifications ”). The Indenture conforms or
will conform, as the case may be, when executed and delivered, in
all material respects to the description thereof contained in the
Prospectus. As of the Delivery Date, the Indenture shall have been
qualified under the Trust Indenture Act. The Indenture conforms or
will conform, as the case may be, when executed and delivered, in
all material respects to the requirements of the Trust Indenture
Act.
(n) This Agreement has been duly
authorized, executed and delivered by the Issuers.
(o) The Debentures have been duly
authorized for issuance and sale by the Company and, when duly
issued, authenticated and delivered pursuant to the provisions of
the Indenture against payment of the consideration therefor in
accordance with this Agreement, the Debentures will be valid and
binding obligations of the Company, enforceable against the Company
and entitled to the benefits of the Indenture, except for the
Standard Qualifications.
(p) The Guarantee has been duly
authorized for issuance by the Guarantor and, when the Indenture
has been duly executed and delivered by the Company and the
Indenture Trustee and the Debentures are duly issued, authenticated
and delivered in accordance with this Agreement, will be the valid
and binding obligation of the Guarantor, enforceable against the
Guarantor and entitled to the benefits of the Indenture, except for
the Standard Qualifications.
(q) 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 or the Guarantor for the
execution, delivery and performance by the Company and the
Guarantor of the Indenture on this Agreement including the
consummation of any of the transactions contemplated thereby,
except such as have been or will be obtained, made, or waived on or
prior to the 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 Indenture or the consummation of any of the
transactions contemplated thereby, other than such consents and
waivers as have been obtained or will be obtained on or prior to
the 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.
5
(r) 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 Issuers to perform their
respective obligations under the Indenture or 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 Issuers to perform their
respective obligations under the Indenture or this Agreement. Any
request of any securities authority or agency of any jurisdiction
for additional information with respect to the Debentures or the
Guarantee that has been received by the Company or its counsel
prior to the date hereof has been, or will prior to the Delivery
Date be, complied with in all material respects.
(s) 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.
(t) None of the Company nor any
Guarantor is, nor after the offering and sale of the Debentures
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 ”).
(u) 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
6
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.
(v) 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.
(w) 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.
(x) 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.
(y) 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
Debentures to facilitate the sale or resale of such
Debentures.
(z) 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.
7
(aa) The Company has not distributed
and, prior to the later to occur of any Delivery Date and
completion of the distribution of the Debentures, will not
distribute any offering material in connection with the offering
and sale of the Debentures 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(g) and any Issuer Free Writing Prospectus set forth on
Schedule 3 hereto.
(bb) The shares of Common Stock
initially issuable upon conversion of the Debentures have been duly
and validly authorized and, when issued upon conversion against
payment of the conversion price and in accordance with the terms of
this Agreement and the Indenture, will be validly issued, fully
paid and nonassessable. The board of directors of the Company or a
committee thereof has duly and validly adopted resolutions
reserving such shares of Common Stock for issuance upon
conversion.
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 Debentures 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 aggregate principal amount of
Debentures set forth opposite that Underwriter’s name in
Schedule 1 hereto. The price of the Firm Debentures shall be 97.5%
of the principal amount per Firm Debenture. The Company shall not
be obligated to deliver any of the Debentures to be delivered on
the Delivery Date except upon payment for all the Debentures to be
purchased on the Delivery Date as provided herein.
3. Offering of Debentures by the
Underwriters . The several Underwriters propose to offer the
Debentures for sale upon the terms and conditions set forth in the
Prospectus.
4. Delivery of and Payment for
the Debentures .
(a) Delivery of and payment for the
Debentures 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 Debentures, the “ First Delivery
Date ”). On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the
Debentures 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 Debentures 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.
(b) The Company will deliver,
against payment of the purchase price, the Debentures in the form
of one or more permanent global certificates (the “ Global
Notes ”), registered in the
8
name of Cede & Co., as nominee for The
Depository Trust Company (“DTC”). The Global Notes will
be made available, at the request of the Underwriters, for checking
at least 24 hours prior to the applicable Delivery Date.
(c) The Company hereby grants the
Option to the Underwriters to purchase the Option Debentures at the
same purchase price as the Underwriters shall pay for the Firm
Debentures. The Option may be exercised in whole or in part from
time to time at any time not more than 13 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 Debentures as to which
the Underwriters are exercising the Option.
(d) The date for the delivery of any
payment for the Option Debentures the (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 Debentures is given. On the Option Delivery Date,
the Company shall deliver or cause to be delivered the Option
Debentures 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 Debentures 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 Debentures 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 Issuers and the
Underwriters .
(A) The Issuers further agree:
(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 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 Debentures; (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
9
Free Writing Prospectus, of the suspension of
the qualification of the Debentures or the Guarantee 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 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 Debentures 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
Debentures (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 Debentures (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 Debentures that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the
Representatives; provided that
10
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.
(d) 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 after the date hereof any events shall have occurred as
a result of which any Issuer Free Writing Prospectus, as
then
