EXHIBIT 4.5(b)
CONFORMED COPY
Dated 11th December, 2001
DENTSPLY INTERNATIONAL INC.
Euro350,000,000 5.75 per cent. Notes due 2006
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SUBSCRIPTION AGREEMENT
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ALLEN & OVERY
London
D8
London, England
11th December, 2001
To: Credit Suisse First Boston (Europe) Limited
UBS AG, acting through its business group UBS Warburg
ABN AMRO Bank N.V.
First Union Securities, Inc.; and
Tokyo-Mitsubishi International plc
(the "Managers")
c/o Credit Suisse First Boston (Europe) Limited ("CSFB")
One Cabot Square
London E14 4QJ
Dear Sirs,
DENTSPLY International Inc., incorporated under the laws of the
State of Delaware (the "Issuer"), proposes to issue
Euro350,000,000 5.75 per cent. Notes due 2006 (the "Notes",
which expression shall, where the context so admits, include the
Global Notes referred to in paragraph 6 below). The Notes will be
in bearer form in the denominations of Euro1,000, Euro10,000
and Euro100,000, each with coupons attached. The terms of the
Notes are set out in the Preliminary Offering Circular and the
Offering Circular referred to below.
The Notes will be issued pursuant to and have the benefit of a
fiscal agency agreement expected to be dated 13th December, 2001
(the "Agency Agreement") between the Issuer and Citibank, N.A. as
fiscal and principal paying agent (the "Fiscal Agent").
The Issuer wishes to record the arrangements agreed between it
and the Managers for the issue and subscription of the Notes as
follows:
1. Subscription of the Notes
1.1 The Issuer agrees to issue the Notes and the Managers
jointly and severally agree with the Issuer to subscribe and
pay for the Notes on the Closing Date (as defined in
paragraph 6 below) at their issue price of 99.746 per cent.
of the principal amount of the Notes less a selling
concession of 0.20 per cent. of the principal amount of the
Notes (the "Selling Price").
1.2 The Issuer confirms that:
(a) it has prepared a preliminary offering circular dated
20th November, 2001 (the "Preliminary Offering
Circular") and an offering circular dated 11th
December, 2001 (the "Offering Circular") and authorises
the Managers to distribute copies of the Preliminary
Offering Circular and the Offering Circular in
connection with the offering and sale of the Notes; and
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(b) it approves the arrangements agreed by it with CSFB and
made on its behalf by CSFB, on behalf of the Managers,
for announcements in respect of the Notes to be
published on such dates and in such newspapers or other
publications as it may agree with CSFB and that, once
the issue price of the Notes has been made public, it
will not publish any press announcement or other public
announcement referring to the issue of the Notes
without adequately disclosing that stabilisation may
take place.
1.3 In connection with the issue and sale of the Notes each of
the Managers represents that it has observed and undertakes
that it will observe the restrictions on the offering of
Notes and distribution of documents relating to the Notes
set forth in paragraph 9 below.
1.4 CSFB (on behalf of the Managers) may, to the extent
permitted by applicable laws, over-allot and effect
transactions in any over-the-counter market or otherwise, in
connection with the distribution of the Notes, with a view
to supporting the market price of the Notes at a level
higher than that which might otherwise prevail but, in doing
so, CSFB shall act as principal and not as agent of the
Issuer and any loss resulting from over-allotment or
stabilisation shall be borne, and any profit arising
therefrom shall be beneficially retained, by CSFB. Nothing
contained in this paragraph 1.4 shall be construed so as to
require the Issuer to issue in excess of Euro350,000,000
principal amount of the Notes.
2. Representations and Warranties
2.1 The Issuer represents, warrants and agrees to and with the
Managers that:
(a) each of the Issuer and its Material Subsidiaries (as
defined in the Conditions of the Notes but on the basis
that each of Degussa Dental GmbH Co. KG and DH
Zweite Vermogensverwaltungs GmbH are Material
Subsidiaries for the purposes of this Agreement and,
for the avoidance of doubt, became members of the Group
(as defined below) on 2nd October, 2001) is a company
duly incorporated and validly existing under the laws
of its jurisdiction of incorporation, is not in
liquidation or receivership and has full power and
authority to conduct its business as described in the
Preliminary Offering Circular and the Offering Circular
and is lawfully qualified to do business in those
jurisdictions in which business is conducted by it so
as to require such qualification except where failure
to be so qualified would not have a material adverse
effect on the Issuer and its subsidiaries taken as a
whole (the "Group") and the Issuer is able lawfully to
execute and perform its obligations under the Notes,
this Agreement and the Agency Agreement;
(b) this Agreement has been duly authorised, executed and
delivered by the Issuer and constitutes, the Agency
Agreement has been duly authorised by the Issuer and on
the Closing Date will constitute, valid and legally
binding obligations of the Issuer;
(c) the issue of the Notes has been duly authorised by the
Issuer and the Notes, when duly executed,
authenticated, issued and delivered in accordance with
the Agency Agreement and this Agreement, will
constitute valid and legally binding obligations of the
Issuer;
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(d) save as referred to in this Agreement, no consent,
approval, authorisation, order, registration or
qualification of or with any court or governmental
agency or body is required for the execution and
delivery of this Agreement and the Agency Agreement by
the Issuer, and the issue and distribution of the Notes
or the consummation of the other transactions
contemplated by this Agreement, the Agency Agreement
or the Notes;
(e) the execution and delivery of this Agreement and the
Agency Agreement, the issue or distribution of the
Notes, the consummation of the transactions herein and
therein contemplated and compliance with the terms
hereof and thereof (i) do not conflict with or result
in a breach of any of the terms or provisions of, or
constitute a default under, the certificate of
incorporation or bylaws (each as amended to the date of
this Agreement) of the Issuer, or any indenture, trust
deed, mortgage or other agreement or instrument to
which the Issuer is a party or by which it or any of
its properties are bound except where such conflict,
breach or default would not reasonably be expected to
have a material adverse effect on the Group; and (ii)
do not infringe any existing applicable law, rule,
regulation, judgment, order or decree of any
government, governmental body or court, domestic or
foreign, having jurisdiction over the Issuer or
infringe the rules of any stock exchange on which
securities of the Issuer are listed;
(f) the Offering Circular contains all information required
by section 80 of the Financial Services and Markets Act
2000 (the "FSMA") and otherwise complies with the
listing rules made under section 84 of the FSMA and all
other relevant statutes and governmental regulations of
the United Kingdom;
(g) all statements of fact contained in the Preliminary
Offering Circular were at the date thereof and all
statements of fact contained in the Offering Circular
are true and accurate in all material respects and not
misleading in any material respect and all statements
of opinion, intention or expectation contained therein
were or are truly and honestly held and were or have
been made after due and careful consideration of all
relevant circumstances and were or are based on
assumptions which the Issuer believes to be reasonable,
and there is no fact or matter omitted from the
Preliminary Offering Circular or the Offering Circular
(i) the omission of which, in the context of the issue
of the Notes, made or makes any statement therein
misleading in any material respect or (ii) was or is,
in the context of the issue of the Notes, material for
disclosure therein;
(h) the consolidated financial statements of the Issuer
appearing on pages F-3 to F-49 (inclusive) in the
Preliminary Offering Circular and on pages F-3 to F-49
(inclusive) in the Offering Circular were prepared in
accordance with United States generally accepted
accounting principles consistently applied (except as
may be indicated in the notes to such financial
statements and subject as otherwise disclosed in the
Preliminary Offering Circular and the Offering
Circular) and present fairly the consolidated financial
condition of the Issuer as at the dates, and the
consolidated results of operations and cash flows of
the Issuer for the periods, in respect of which they
have been prepared (subject, in the case of interim
financial statements, to normal year end adjustments)
and, since 31st December, 2000, there has been no
change nor, so far as the Issuer is aware, any event
reasonably likely to involve a prospective change which
is or would reasonably be expected to be materially
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adverse to the financial condition, results of
operations or properties of the Issuer or the Group,
respectively, which (i) has not been disclosed in the
Preliminary Offering Circular and the Offering Circular
or (ii) is not reflected in the financial statements
and financial information appearing in the Preliminary
Offering Circular and the Offering Circular;
(i) the combined financial statements of Degussa Dental (as
defined in note 1 to such combined financial
statements) as at and for the year ended 31st December,
2000 and as at and for the six months ended 30th June,
2001 appearing on pages F-51 to F-70 inclusive) in the
Preliminary Offering Circular and on pages F-51 to F-70
inclusive) in the Offering Circular were prepared in
accordance with United States generally accepted
accounting principles consistently applied and present
fairly the financial condition of Degussa Dental as at
the dates and the results of the operations and cash
flows of Degussa Dental for the periods in respect of
which they were prepared and, since 30th June, 2001,
there has been no change nor, so far as the Issuer is
aware, any event reasonably likely to involve a
prospective change which is or would reasonably be
expected to be materially adverse to the financial
condition, results of operations or properties of
Degussa Dental, except as disclosed in the Preliminary
Offering Circular and the Offering Circular;
(j) it reasonably believes that the DENTSPLY pro forma
financial information appearing on pages F-72 to F-80
(inclusive) in the Preliminary Offering Circular and on
pages F-72 to F-80 (inclusive) in the Offering Circular
has been prepared on the basis stated therein and
accurately presents in all material respects the
information it purports to show and that such pro forma
financial information is not misleading in any material
respect;
(k) except as disclosed in the Preliminary Offering
Circular and the Offering Circular and except where the
facts giving rise to any inaccuracy in this warranty
would not reasonably be expected to have a material
adverse effect on the Group, the Issuer and its
subsidiaries (i) have good and marketable title to all
real properties and good and marketable title to all
other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would
materially affect the value thereof or materially
interfere with the use made or to be made thereof by
them and (ii) hold any leased real or personal property
under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to
be made thereof by them;
(l) the Issuer and its Material Subsidiaries possess such
authorities and permits issued by appropriate
governmental agencies or bodies as may be necessary to
conduct the business now operated by them and have not
received any notice of proceedings relating to the
revocation or modification of any such authority or
permit that, if determined adversely to the Issuer or
any of its Material Subsidiaries, would have a material
adverse effect on the Group;
(m) no labour dispute with the employees of the Issuer or
any subsidiary exists or, to the knowledge of the
Issuer, is imminent that would reasonably be expected
to have a material adverse effect on the Group;
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(n) no member of the Group has (i) infringed any
trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information
and other intellectual property (collectively,
"intellectual property rights") of any third party or
(ii) received any notice of infringement of or conflict
with asserted rights of others with respect to any
intellectual property rights which, in either case if
proceedings relating thereto were determined adversely,
would have a material adverse effect on the Group;
(o) except as disclosed in the Preliminary Offering
Circular and the Offering Circular, neither the Issuer
nor any of its subsidiaries is in violation of any
statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the
protection or restoration of the environment or human
exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that
is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating
to any environmental laws, which violation,
contamination, liability or claim would have a material
adverse effect on the Group;
(p) save as disclosed in the Preliminary Offering Circular
and in the Offering Circular, there are no pending
legal or arbitration proceedings against or affecting
the Issuer or any of its subsidiaries or any of their
properties, which would have a material adverse effect
on the condition (financial or other), prospects,
results of operations or general affairs of the Group,
or would materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes,
this Agreement or the Agency Agreement, or which are
otherwise material in the context of the issue of the
Notes and, to the best of the Issuer's knowledge, no
such proceedings are threatened or contemplated;
(q) no event has occurred which, had the Notes already been
issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfilment of any
other requirement) constitute an event described as an
"Event of Default" in the Conditions of the Notes in
the Preliminary Offering Circular and the Offering
Circular;
(r) it has been informed of the existence of the
informational guidance on stabilisation published by
the U.K. Financial Services Authority;
(s) neither the Issuer, nor any of its affiliates, nor any
person acting on its or their behalf have engaged or
will engage in any directed selling efforts (as defined
in Regulation S under the United States Securities Act
of 1933, as amended (the "Securities Act") with respect
to the Notes and it and they have complied and will
comply with the offering restrictions requirement of
such Regulation;
(t) upon issue the Notes will constitute direct,
unconditional and (subject to the Conditions of the
Notes) unsecured obligations of the Issuer and will
rank pari passu, without any preference among
themselves, with all other outstanding unsecured and
unsubordinated obligations of the Issuer, present and
future, but, in the event of insolvency only to the
extent permitted by applicable laws relating to the
creditors' rights; and
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(u) except with respect to the transactions contemplated by
this Agreement or as described in the Preliminary
Offering Circular or the Offering Circular, no action
has been taken or is contemplated by the Issuer or any
other member of the Group (and the Issuer is not aware
of any action having been taken or being contemplated
by any other person with respect to the Issuer or any
of is subsidiaries) which may result in the Issuer
being obliged, under listing requirements or other
obligations to its shareholders generally, to make any
information which may be material to a subscriber for
the Notes available to the public prior to the Closing
Date.
2.2 Indemnity
The commitment of the Managers under this Agreement being
made on the basis of the foregoing representations and
warranties and with the intention that they shall remain
true and accurate in all respects up to and including the
Closing Date, the Issuer undertakes to each Manager that if
that Manager or any of its directors, officers and/or each
person who controls any Manager for the purposes of Section
15 of the Securities Act (each a "Relevant Party" in
relation to that Manager) incurs any loss, liability, cost,
claim, action, demand or expense (including, but not limited
to, all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing) (a
"Loss") arising out of or in relation to or in connection
with any breach or alleged breach of any such representation
or warranty, or any other undertaking or obligation of the
Issuer contained in this Agreement or any untrue or
misleading (or allegedly untrue or misleading) statement in
or any omission (or alleged omission) from, the Preliminary
Offering Circular, the Offering Circular or any supplement
thereto the Issuer shall, subject as provided below, pay to
that Manager on determination and demand an amount equal to
that Loss.
Except as required by law, no Manager shall have any duty or
obligation, whether fiduciary or trustee to any Relevant
Party or otherwise, to recover any such payment or to
account to any other person for any amount paid to it under
this paragraph 2.2.
If any proceeding (including a governmental investigation)
shall be instituted involving some or all of the Managers or
any Relevant Party related to them (together, the
"Indemnified Person") in respect of which indemnity may be
sought pursuant to this paragraph 2.2, the relevant Manager
or Managers shall promptly notify the Issuer in writing and
the Issuer shall, unless the relevant Indemnified Person
elects to assume the defence itself, assume the defence
thereof and appoint lawyers reasonably satisfactory to the
relevant Indemnified Person and shall be liable to pay the
reasonable fees and expenses of such lawyers related to such
proceeding. In any proceeding, any Indemnified Person shall
have the right to retain its own lawyers, but the fees and
expenses of such lawyers shall be at the expense of such
Indemnified Person unless (i) the Issuer and the Indemnified
Person shall have mutually agreed to the retention of such
lawyers or (ii) the named parties to any such proceeding
(including any joined parties) include the Issuer and the
Indemnified Person and representation of both parties by the
same lawyers would be inappropriate due to actual or
potential differing interests between them or (iii) pursuant
to the previous sentence the Indemnified Person has elected
to assume the defence itself or the Issuer has failed to
appoint lawyers reasonably satisfactory to the Indemnified
Person. It is understood that the Issuer shall reimburse
such reasonable fees and expenses as they are incurred in
respect of (i), (ii)
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and (iii) above. The Issuer shall not be liable for any
settlement of any such proceeding effected without its
written consent (provided that such consent shall not be
unreasonably withheld or delayed), but if settled with such
consent (or without such consent in circumstances where such
consent shall have been unreasonably withheld or delayed as
aforesaid) or if there be a final judgment for the
plaintiff, the Issuer agrees to indemnify the relevant
Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. The Issuer will not
settle any proceeding without the written consent of CSFB
(such consent not to be unreasonably withheld).
3. Covenants of the Issuer
The Issuer undertakes with the Managers that:
(a) the Issuer will, on or before the Closing Date, execute
the Agency Agreement;
(b) the Issuer will pay any stamp, issue, registration,
documentary or other taxes and duties, including
interest and penalties, payable in connection with the
creation, issue, offering or sale of the Notes or the
execution or delivery of this Agreement and the Agency
Agreement (and any value added, turnover or similar tax
payable in respect of that amount (and references in
this Agreement to such amount shall be deemed to
include any such taxes so payable in addition to it))
which are or may be required to be paid under the laws
of the United States, the United Kingdom or any
political subdivision or taxing authority thereof or
therein;
(c) the Issuer will deliver to CSFB, on behalf of the
Managers, without charge, on the date hereof and
hereafter from time to time as requested, such number
of copies of the Preliminary Offering Circular and
Offering Circular as CSFB, on behalf of the Managers,
may reasonably request, and the Issuer will furnish to
CSFB, on behalf of the Managers, on the date hereof
three copies of the Offering Circular signed by a duly
authorised officer of the Issuer;
(d) if at any time prior to the later of completion (in the
view of CSFB) of the distribution of the Notes (which
shall be notified by CSFB to the Issuer) and the
Closing Date any event shall have occurred as a result
of which the Offering Circular, as then amended or
supplemented, would include an untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein, in the light
of the circumstances under which they are made when
such Offering Circular is delivered, not misleading,
the Issuer will notify CSFB, on behalf of the Managers,
and, upon request from CSFB, will prepare and furnish
without charge to the Managers as many copies as CSFB
may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering
Circular which will correct such statement or omission;
the Issuer will not make any amendment or supplement to
the Offering Circular without the prior written consent
(not to be unreasonably withheld) of CSFB, on behalf of
the Managers provided always that if the Issuer is
required to publish supplementary listing particulars,
nothing in this paragraph 3(d) should prevent it from
doing so;
(e) the Issuer will promptly notify CSFB, on behalf of the
Managers, of any material change affecting any of its
representations and/or warranties contained herein
which occurs prior to payment being made to the Issuer
on the Closing Date and will take such steps as may be
reasonably practicable and reasonably required by CSFB,
on behalf of the Managers, to remedy and/or publicise
such material change;
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(f) in connection with the application to list the Notes
referred to in paragraph 7, the Issuer will furnish
from time to time any and all documents, instruments,
information and undertakings and publish all
advertisements or other material that may be necessary
in order to effect and maintain such listing until none
of the Notes is outstanding or until such time as
payment in respect of principal and interest in respect
of all the Notes has been duly provided for, whichever
is earlier; and
(g) so long as any of the Notes remains outstanding, the
Issuer will furnish to CSFB, and to each other Manager
who may so request in writing, copies of each document
filed by the Issuer with the UKLA or the London Stock
Exchange (each as defined in paragraph 7), and copies
of financial statements and other periodic reports that
the Issuer may furnish generally to holders of its debt
securities.
4. Commissions
In consideration of the agreement by the Managers to act as
the Managers in relation to the issue of the Notes and to
subscribe and pay for the Notes, the Issuer shall pay to the
Managers a commission of 0.20 per cent. of the principal
amount of the Notes for management and underwriting. Such
commissions shall be deducted from the subscription monies
for the Notes as provided in paragraph 6.
5. Costs and Expenses
5.1 The arrangements for the payment of expenses of the issue of
the Notes have been separately agreed between the Issuer and
CSFB, on behalf of the Managers, in a side letter.
5.2 All payments by the Issuer under this Agreement shall be
paid without set-off or counterclaim, and free and clear of
and without deduction or withholding for or on account of,
any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature, imposed by
the United States, or by any department, agency or other
political subdivision or taxing authority thereof, and all
interest, penalties or similar liabilities with respect
thereto ("U.S. Taxes"). If any U.S. Taxes are required by
law to be deducted or withheld in connection with such
payments, the Issuer will increase the amount paid so that
the full amount of such payment is received by the payee as
if no such deduction or withholding had been made.
5.3 All payments in respect of the costs, fees and expenses
referred to in this paragraph shall be satisfied by the
Issuer making them to CSFB or as it may direct and the
Issuer shall not be concerned with the apportionment of such
payments between the Managers.
6. Closing
Payment of the net subscription monies for the Notes (namely
the Selling Price, less the commission in respect of the
Notes referred to in paragraph 4 and less any such amount as
may be agreed in respect of the Notes under paragraph 5.1)
shall be made by CSFB, on behalf of the Managers, by a
common depositary for Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") and Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("Euroclear Bank")
acknowledging that it holds the net subscription monies to
the
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account of the Issuer at 10.00 a.m. hours (London time) on
13th December, 2001 or such other time and/or date as the
Issuer and CSFB, on behalf of the Managers, shall determine
(the "Closing Date"), against delivery outside the United
States and its possessions to the common depositary of a
duly executed temporary global Note (the "Temporary Global
Note"), initially representing the Notes, and a duly
executed permanent global Note (the "Permanent Global Note",
and together with the Temporary Global Note, the "Global
Notes"), each in or substantially in the form set out in the
Agency Agreement.
7. Listing
7.1 The Issuer shall, if it has not already done so, make an
application for the Notes to be listed on the official list
(the "Official List") maintained by the UK Listing Authority
(the "UKLA") and admitted to the London Stock Exchange plc's
("London Stock Exchange") market for listed securities
(which together constitute official listing on the London
Stock Exchange). In connection with such application, the
Issuer shall endeavour to obtain the listing as promptly as
practicable and the Issuer shall furnish any and all
documents, instruments, information and undertakings that
may be necessary or advisable in order to obtain or maintain
the listing.
7.2 The Issuer undertakes that it will arrange for the
registration of the listing particulars on the date hereof
with the Registrar of Companies in accordance with Section
83 of the FSMA.
7.3 If after the preparation of the Offering Circular for
submission to the UKLA and before the commencement of
dealings in the Notes following their admission to the
Official List:
(a) there is a significant change affecting any matter
contained in the Offering Circular whose inclusion was
required by section 80 of the FSMA or by the listing
rules of the UKLA (the "Listing Rules"); or
(b) a significant new matter arises the inclusion of
information in respect of which would have been so
required if it had arisen when the Offering Circular
was prepared,
the Issuer shall give to CSFB, on behalf of the Managers,
full information about the change or matter and shall
publish supplementary listing particulars (in a form
approved by CSFB acting reasonably) as may be required by
the UKLA, and shall otherwise comply with sections 81 and 83
of the FSMA and the Listing Rules in that regard.
7.4 If the Notes cease to be listed on the London Stock
Exchange, the Issuer shall use reasonable endeavours to list
the Notes, within a reasonable period of time, on a stock
exchange to be agreed between the Issuer and CSFB, on behalf
of the Managers.
8. Conditions Precedent
8.1 The obligations of the Managers to subscribe and pay for the
Notes are subject to the following conditions precedent:
(a) the Agency Agreement shall have been executed by all
parties thereto on or prior to the Closing Date;
(b) the official listing of the Notes on the London Stock
Exchange (in accordance with paragraph 7.1) shall have
occurred on or prior to the Closing Date subject to
issue of the Notes;
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(c) upon the signing of this Agreement and on the Closing
Date, there shall have been delivered to CSFB, on
behalf of the Managers, comfort letters in the agreed
form, dated the date of this Agreement in the case of
the first letter and dated the Closing Date in the case
of the second letter, from PricewaterhouseCoopers LLP,
the auditors to the Issuer;
(d) on or prior to the Closing Date, there shall have been
delivered to CSFB, on behalf of the Managers, opinions,
in the agreed form, dated the Closing Date, of:
(i) Morgan, Lewis & Bockius LLP, legal advisers to the
Issuer as to U.S. law; and
(ii) Allen & Overy, legal advisers to the Managers as
to English law;
(e) at the Closing Date (i) the representations and
warranties of the Issuer herein shall be accurate and
correct at, and as if made on, the Closing Date; and
(ii) the Issuer shall have performed all of its
obligations hereunder to be performed on or before the
Closing Date; and (iii) there shall have been delivered
to CSFB, on behalf of the Managers, a certificate,
dated as of the Closing Date, of a duly authorised
officer of the Issuer to such effect;
(f) at the Closing Date there shall have occurred no
downgrading, nor shall any public announcement have
been made of any intended downgrading or placing on
creditwatch with negative implications in a rating
accorded to any other debt securities of the Issuer by
any rating agency; and
(g) at the Closing Date there shall not have occurred any
change in the condition (financial or other), business,
properties, prospects or results of operations of the
Issuer or the Group from the description thereof set
forth in the Offering Circular, which makes it, in the
reasonable opinion of CSFB, on behalf of the Managers,
impracticable to market the Notes on the terms and in
the manner contemplated in the Offering Circular.
8.2 If any of the conditions set forth in paragraph 8.1 is not
satisfied on or prior to the Closing Date, the parties
hereto shall be released and discharged from their
respective obligations hereunder (except for any liability
of the Issuer for the payment of costs and expenses as
provided in paragraph 5 and except for any liability of any
party arising before or in connection with such
termination). CSFB, on behalf of the Managers, may at its
discretion, however, waive compliance with the whole or any
part of paragraph 8.1.
8.3 For the purposes of paragraph 8.1 the "agreed form" means
the form initialled for identification by Allen & Overy and
Denton Wilde Sapte.
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9. Restrictions
9.1 Each Manager acknowledges that, except to the extent
indicated in this paragraph 9, no action has been taken or
will be taken in any jurisdiction by the Managers that would
permit a public offering of the Notes, or possession or
distribution of the Offering Circular (in preliminary or
final form) or any amendment or supplement thereto or any
other offering or publicity material relating to the Notes,
in any country or jurisdiction where action for that purpose
is required. Each Manager will comply with all applicable
laws and regulations in each jurisdiction in which it
acquires, purchases, offers, sells or delivers Notes or has
in its possession or distributes the Offering Circular (in
preliminary or final form) or any amendment or supplement
thereto or any other offering material, in all cases at its
own expense. The Issuer will have no responsibility for
obtaining, and each Manager will obtain, any consent,
approval or permission required by it for the acquisition,
offer, sale or delivery by it of Notes under the laws and
regulations in force in any jurisdiction to which it is
subject or in or from which it makes any acquisition, offer,
sale or delivery. No Manager is authorised to make any
representation or use any information in connection with the
issue, subscription and sale of the Notes other than as
contained in the Offering Circular (in final form) or any
amendment or supplement thereto.
9.2 Each Manager acknowledges that the Notes have not been
registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account
or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each
Manager represents and agrees that it has not offered and
sold the Notes, and will not offer and sell the Notes (i) as
part of their distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the
offering and the Closing Date, except in accordance with
Rule 903 under the Securities Act. Accordingly, neither
such Manager nor its affiliates, nor any persons acting on
its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Notes, and such
Manager, its affiliates and all persons acting on its or
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Manager
agrees that, at or prior to confirmation of sale of the
Notes, such Manager will have sent to each distributor,
dealer or person receiving a selling concession, fee or
other remuneration that purchases the Notes from it during
the distribution compliance period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the date of the
commencement of the offering and the Closing Date,
except in either case in accordance with Regulation S
under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
Terms used in this sub-paragraph have the meanings given to
them by Regulation S.
9.3 (a) Except to the extent permitted under United States
Treas. Reg.ss.1.163-5(c)(2)(i)(D) (the "D Rules"), each
of the Managers represents and agrees that it (A) has
not offered or sold, and during the restricted period
will not offer or sell, Notes to a person who is within
the United States or its possessions or to a United
States person, and (B) has not delivered and will not
deliver within the United States or its possessions
definitive Notes that are sold during the restricted
period.
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(b) Each of the Managers represents and agrees that it has and
throughout the restricted period will have in effect
procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling
Notes are aware that such Notes may not be offered or
sold during the restricted period to a person who is
within the United States or its possessions or to a
United States person, except as permitted by the D
Rules.
(c) Each of the Managers that is a United States person
represents that it is acquiring the Notes for purposes
of resale in connection with their original issuance
and if it retains Notes for its own account, it will
only do so in accordance with the requirements of
United States Treas. Reg.ss.1.163-5(c)(2)(i)(D)(6).
(d) With respect to each affiliate of a Manager that acquires
Notes from one or more of the Managers for the purpose
of offering or selling such Notes during the restricted
period, such Manager (A) repeats and confirms the
representations and agreements contained in paragraphs
9.3(a), (b) and (c) on its behalf or (B) agrees that it
will obtain from such affiliate for the Issuer's
benefit the representations and agreements contained in
paragraphs 9.3(a), (b) and (c).
(e) Each of the Managers represents and agrees that it will
obtain from any distributor (within the meaning of
United States Treas. Reg. ss.1.163-5(c)(2)(i)(D)(ii))
that purchases any of the Notes from one or more of the
Managers (except a distributor who is an affiliate of
such Manager), for the benefit of the Issuer and such
Manager, an agreement to comply with the provisions,
representations and agreements contained in this
sub-paragraph, as if such distributor were a Manager
hereunder.
Terms used in this sub-paragraph have the meanings given to
them by the Internal Revenue Code of 1986, as amended and
regulations thereunder, including the D Rules.
9.4 Each Manager represents and agrees that:
(a) it has not offered or sold and will not offer or sell
any Notes to persons in the United Kingdom prior to
admission of the Notes to listing in accordance with
Part VI of the FSMA except to persons whose ordinary
activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in
circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities
Regulations 1995 (as amended) or the FSMA;
(b) it has only issued or passed on in the United Kingdom,
before the repeal of Section 57 of the Financial
Services Act 1986 (the "FSA"), any document received by
it in connection with the issue of the Notes, other
than any document which consists of or any part of
listing particulars, supplementary listing particulars
or any other document required or permitted to be
published by listing rules under Part IV of the FSA, to
a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or
is a person to
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whom the document may otherwise lawfully be issued or
passed on and, after the repeal of Section 57 of the
FSA, it has only communicated or caused to be
communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21
of the FSMA) received by it in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuer;
and
(c) it has complied and will comply with all applicable
provisions of the FSA and, after it is brought into
force, the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving
the United Kingdom.
9.5 Each Manager undertakes that it will not, directly or
indirectly, offer to sell any Notes or distribute or publish
any offering circular, prospectus, form of application,
advertisement or other document or information in any
country or jurisdiction except under circumstances that
will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations and all
offers and sales of Notes by it will be made on the same
terms.
9.6 Each Manager undertakes to the Issuer that if the Issuer or
any of its directors, officers and/or persons who control
the Issuer for the purposes of Section 15 of the Securities
Act incurs any loss, liability, cost, claim, action, demand
or expenses (including, but not limited to, all reasonable
costs, charges or expenses paid or incurred in disputing any
of the foregoing) (a "Loss") as a result of or in relation
to any failure by that Manager to observe any of the above
restrictions or requirements in this paragraph 9, such
Manager shall pay to the Issuer on demand an amount equal to
that Loss, provided that in the case of any Loss arising
from the sale of any Notes to any person believed in good
faith by that Manager, on reasonable grounds and after
making reasonable investigations, to be a person to whom the
Notes could legally be sold or to whom any material could
lawfully be given in compliance with the above restrictions
and requirements the liability of the Manager for that Loss
shall be limited to the amount of Loss that would have been
recovered had the action been one for breach of the relevant
undertaking rather than in respect of this indemnity. The
provisions of clause 2.2 with respect to the conduct and
settlement of actions shall apply, mutatis mutandis, to this
indemnity.
10. Termination
10.1 Notwithstanding anything contained herein, CSFB, on behalf
of the Managers, may, by notice to the Issuer given at any
time prior to payment of the net subscription monies for the
Notes to the Issuer, terminate this Agreement in any of the
following circumstances:
(a) if there shall have come to the notice of the Managers any
material breach of, or any event rendering untrue or
incorrect in any material respect, any of the
warranties and representations contained in paragraph 2
or any material failure to perform any of the Issuer's
undertakings or agreements in this Agreement;
(b) if any of the conditions specified in paragraph 8 has
not been satisfied or waived by the Managers; or
(c) if, in CSFB's opinion, there shall have been since the
date of this Agreement such a change in national or
international financial, political or economic
conditions or currency exchange rates or exchange
controls as would in its view be likely to prejudice
materially the success of the offering and distribution
of the Notes or dealings in the Notes in the secondary
market.
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10.2 Upon such notice being given this Agreement shall terminate
and be of no further effect and no party shall be under any
liability to any other in respect of this Agreement, except
that (i) the Issuer shall remain liable under paragraph 5.1
for the payment of the costs and expenses already therein
referred to and incurred or reasonably incurred in
consequence of such termination and (ii) the parties shall
remain liable in respect of any obligations arising before
or in connection with such termination.
11. Survival of Representations and Obligations
The representations, warranties, agreements, undertakings
and indemnities herein shall continue in full force and
effect notwithstanding completion of the arrangements for
the subscription and issue of the Notes.
12. Notices
Any notice or notification in any form to be given by the
Managers to the Issuer may be delivered in person or sent by
letter or facsimile transmission (in the case of
notification by facsimile transmission with subsequent
confirmation by letter provided, however, that the absence
of such confirmation shall not affect the validity of the
original notification) addressed to it at 570W, College
Avenue, York, Pennsylvania 17405-0872 (Attention: Brian
Addison, Secretary, facsimile: 001 717 8494753, ).
Any notice or notification to the Managers shall be
addressed to them, c/o Credit Suisse First Boston (Europe)
Limited, One Cabot Square, London E14 4QJ, England
(Attention:Debt Capital Markets, facsimile: 020 7516 3716).
Any such notice shall take effect, in the case of a letter,
at the time of delivery. In the case of facsimile
transmission at the time of receipt and in the case of a
telex on receipt of an answerback confirmation by the sender.
13. Governing Law
This Agreement shall be governed by and construed in
accordance with English law.
In relation to any legal action or proceedings arising out
of or in connection with this Agreement ("Proceedings") the
Issuer and each of the Managers irrevocably submits to the
non-exclusive jurisdiction of the courts of England and
waives any objection to Proceedings in such courts whether
on the grounds that the Proceedings have been brought in an
inconvenient forum or otherwise. This submission shall not
affect the right of any of the parties to take Proceedings
in any other court of competent jurisdiction nor shall the
taking of Proceedings in any court of competent jurisdiction
preclude any of them from taking Proceedings in any other
court of competent Jurisdiction (whether concurrently or
not).
The Issuer irrevocably appoints Denton Wilde Sapte of 1
Fleet Place, London EC4M 7WS as its authorised agent for
service of process in England. Nothing in this Agreement
shall affect the right to serve process in any other manner
permitted by law.
14. Counterparts
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
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15. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Agreement, but this does not affect
any right or remedy of a third party which exists or is
available apart from that Act.
Please confirm that this Agreement correctly sets out the
arrangements agreed between us.
Yours faithfully
DENTSPLY INTERNATIONAL INC.
By: JOHN C. MILES II
To: DENTSPLY INTERNATIONAL INC.
We confirm that the foregoing Agreement correctly sets out the
arrangements agreed between us.
Yours faithfully
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: ANDREA GULL
UBS AG, ACTING THOUGH ITS BUSINESS GROUP UBS WARBURG;
ABN AMRO BANK N.V.
FIRST UNION SECURITIES, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: ANDREA GULL
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