Exhibit 1.3
EXECUTION COPY
OMNICARE, INC.
$225,000,000 6 3/4% Senior Subordinated Notes due 2013
$525,000,000 6 7/8% Senior Subordinated Notes due 2015
UNDERWRITING AGREEMENT
December 12, 2005
L EHMAN B ROTHERS I NC
.
J.P. M ORGAN S ECURITIES I NC .,
S UN T
RUST C APITAL M ARKETS ,
I NC .
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., SunTrust Capital
Markets, Inc., 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 ”), $225,000,000 aggregate principal
amount of its 6 3/4% Senior Subordinated Notes due 2013 (the
“ 2013 Notes ”) and $525,000,000 aggregate
principal amount of its 6 7/8% Senior Subordinated Notes due 2015
(the “ 2015 Notes ”, together with the 2013
Notes, the “ Notes ”), to be issued pursuant to
the Fourth Supplemental Indenture (the “ Supplemental
Indenture ”) to be entered into among the Company, the
Guarantors (as defined below) and SunTrust Bank, as indenture
trustee (in such capacity, the “ Indenture Trustee
”), to the Indenture, (the “ Base Indenture
” and, together with the Supplemental Indenture, the “
Indenture ”), to be entered into among the Company and
the Indenture Trustee. The Company’s obligations under the
Notes and the Indenture will be unconditionally guaranteed (the
“ Guarantees ”) on an unsecured senior
subordinated basis by the subsidiaries of the Company listed in
Schedule 2 hereto, as guarantors (the “ Guarantors
” and, together with the Company, the “ Issuers
”).
This is to confirm the agreement
among the Company, the Guarantors and the Underwriters concerning
the offer, issuance and sale of the Notes.
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. 333-130211), including a related
prospectus, setting forth information with respect to the Company,
the Notes and the
Guarantees, 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. The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405 of the
Securities Act) and was filed not earlier than the date that is
three years prior to the Delivery Date (as defined in
Section 4(a)).
(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(a)),
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).
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(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 Notes that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representatives, except as set forth on Schedule 3 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 4 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
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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 Notes and to consummate the
transactions contemplated thereby to be consummated on its part,
and each of the Guarantors has all requisite corporate power and
authority to execute, issue and deliver the Supplemental Indenture,
this Agreement and the Guarantees 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 Notes and the Guarantees, 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
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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, and the Supplemental Indenture has been duly authorized by
each of the Guarantors and will be duly executed and delivered by
the Guarantors and will constitute a valid and binding agreement of
the Guarantors, enforceable against the Guarantors 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 Notes 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 Notes 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 Guarantees have been duly
authorized for issuance by the Guarantors and, when the Indenture
has been duly executed and delivered by the Company and the
Indenture Trustee and the Notes are duly issued, authenticated and
delivered in accordance with this Agreement, will be the valid and
binding obligation of the Guarantors, enforceable against the
Guarantors 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 Guarantors for the
execution, delivery and performance by the Company and the
Guarantors 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
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full force and effect or except as could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(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 Notes or the
Guarantees 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 Notes 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 ”).
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(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 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
Notes to facilitate the sale or resale of such Notes.
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(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.
(aa) The Company has not distributed
and, prior to the later to occur of the Delivery Date and
completion of the distribution of the Notes, will not distribute
any offering material in connection with the offering and sale of
the Notes 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.
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 Notes 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 Notes
set forth opposite that Underwriter’s name in Schedule 1
hereto. The price of the Notes shall be 98.25% of the principal
amount per Note. The Company shall not be obligated to deliver any
of the Notes to be delivered on the Delivery Date except upon
payment for all the Notes to be purchased on the Delivery Date as
provided herein.
3. Offering of Notes by the Underwriters
. The several Underwriters propose to offer the Notes for sale upon
the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Notes
.
(a) Delivery of and payment for the
Notes 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
Notes, the “ Delivery Date ”). On the Delivery
Date, the Company shall deliver or cause to be delivered
certificates representing the Notes 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 Notes shall be registered in such names and in such
denominations as the Representatives shall request in writing not
less than two full Business Days prior to the Delivery
Date.
(b) The Company will deliver,
against payment of the purchase price, the Notes in the form of one
or more permanent global certificates (the “ Global
Notes ”), registered in the 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
Delivery Date.
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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 Inc. (“
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 the 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 Notes; (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 Notes or the Guarantees 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 pay the applicable Commission
filing fees relating to the Notes within the time required by
Rule 456(b)(1) without regard to the proviso
therein;
(c) 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;
(d) 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 Notes 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,
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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;
(e) 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;
(f) 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;
(g) Not to make any offer relating
to the Notes 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.
(h) 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
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;
(i) 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);
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(j) Promptly from time to time, to
take such action as Lehman Brothers may reasonably request to
qualify the Notes and the Guarantees 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 Notes and the
Guarantees; provided that, in connection therewith, none of
the Issuers shall 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.
(k) 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 Notes (except after consultation with the
Underwriters and as may be permitted by under federal securities
laws);
(l) To use its commercially
reasonable efforts to cause the Notes to be accepted for clearance
and settlement through the facilities of DTC;
(m) To execute and deliver the
Indenture in form and substance reasonably satisfactory to Lehman
Brothers; and
(n) To apply the net proceeds from
the issuance of the Notes as set forth under “Use of
Proceeds” in the Prospectus.
(B) Each Underwriter severally agrees that such
Underwriter shall not include any “issuer information”
(as defined in Rule 433) in any “free writing
prospectus” (as defined in Rule 405) used or referred to by
such Underwriter without the prior written consent of the Company
(any such issuer information with respect to whose use the Company
has given its prior written consent, “Permitted Issuer
Information”); provided that (i) no such consent
shall be required with respect to any such issuer information
contained in any document filed by the Company with the Commission
prior to the use of such free writing prospectus and
(ii) “issuer information,” as used in this
Section 5(B), shall not be deemed to include information
prepared by or on behalf of such Underwriter on the basis of or
derived from Permitted Issuer Information.
6. Expenses . Whether or not the
transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated, the Company agrees to
pay:
(a) the costs incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and any
Prospectus or any amendment or supplement thereto;
(b) the costs of distributing the
Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Prospectus and any amendment or supplement
thereto, in each case, as provided in this Agreement;
11
(c) the costs of distributing the
terms of any agreement relating to the organization of the
underwriting syndicate and selling group to the members thereof, by
mail, telex or other reasonable means of communication;
(d) the costs, if any, of producing
and distributing the Indenture;
(e) the qualification or
registration of the Notes and the Guarantees for offer and sale
under the securities laws of the several states of the United
States or provinces of Canada (including, without limitation, the
cost of printing and mailing preliminary and final “Blue
Sky” or legal investment memoranda and reasonable fees and
disbursements of counsel (including local counsel) to the
Underwriters relating thereto);
(f) the expenses of the Company in
connection with the marketing and offering of the Notes, including,
if applicable, all reasonable costs and expenses of the Company
incident to the preparation of “road show” presentation
or comparable marketing materials and the road show traveling
expenses of the Company in connection with the offering of the
Notes, provided , however , that the Company and the
Underwriters shall share equally all costs related to the
chartering of any aircraft for use in connection with any such road
show;
(g) all fees and expenses incurred
in connection with any rating of the Notes;
(h) the fees and expenses of the
Company’s counsel and independent accountants and the fees
and expenses (including fees and disbursements of counsel) of the
Indenture Trustee;
(i) all fees and expenses in
connection with the approval of the Notes by DTC for
“book-entry” transfer;
(j) the costs and charges of any
registrar, transfer agent, paying agent and exchange agent under
the Indenture; and
(k) all other costs and expenses
incident to the performance of the obligations of the Issuers under
this Agreement.
Except as provided in this Section 6 and
Section 12 herein, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel and
any transfer taxes on the Notes which they may sell.
7. Conditions of the Underwriters’
Obligations . The several obligations of the Underwriters
hereunder are subject to the satisfaction of each of the following
conditions and agreements:
(a) All of the representations and
warranties of the Issuers contained in this Agreement shall be true
and correct, or true and correct in all material respects where
such representations and warranties are not qualified by
materiality or Material Adverse Effect, on the date of this
Agreement and, in each case after giving effect to the transactions
contemplated hereby, on the Delivery Date, except that if a
representation and warranty is made as of a specific date, and such
date is expressly referred to therein, such representation and
warranty shall be true and correct (or true and correct in all
material respects, as applicable) as of such date. The Issuers
shall have performed or complied in all material resp
