<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997
REGISTRATION NO. 333-39867
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
WESLEY JESSEN VISIONCARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
DELAWARE 36-4023739
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
3851
333 EAST HOWARD AVENUE (PRIMARY STANDARD INDUSTRIAL
DES PLAINES, ILLINOIS 60018-5903 CLASSIFICATION CODE NUMBER)
(847) 294-3000
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE
OFFICES)
---------------
KEVIN J. RYAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WESLEY JESSEN VISIONCARE, INC.
333 EAST HOWARD AVENUE
DES PLAINES, ILLINOIS 60018-5903
(847) 294-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES OF ALL COMMUNICATIONS, INCLUDING COMMUNICATIONS SENT TO AGENT FOR
SERVICE, SHOULD BE SENT TO:
DENNIS M. MYERS, ESQ. DAVID B. WALEK, ESQ.
KIRKLAND & ELLIS ROPES & GRAY
200 EAST RANDOLPH DRIVE ONE INTERNATIONAL PLACE
CHICAGO, ILLINOIS 60601 BOSTON, MASSACHUSETTS 02110
(312) 861-2000 (617) 951-7000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a statement of estimated expenses, to be paid solely by the
Company, of the issuance and distribution of the securities being registered:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 14,349
NASD filing fee.................................................... 5,235
Blue Sky fees and expenses (including attorneys' fees and
expenses)......................................................... 10,000
Printing expenses.................................................. 50,000
Accounting fees and expenses....................................... 100,000
Legal fees and expenses............................................ 100,000
Miscellaneous expenses............................................. 20,416
--------
Total............................................................ $300,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware ("Section 145")
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of
the fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the corporation's best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such corporation, or is
or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit, provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses
which such officer or director has actually and reasonably incurred.
The Company's Certificate of Incorporation and By-laws provide for the
indemnification of Directors and officers of the Company to the fullest extent
permitted by Section 145.
In that regard, the By-laws provide that the Company shall indemnify any
person whom it has the power to indemnify by Section 145 from or against any
and all of the expenses, liabilities or other matters referred to or covered
in Section 145, and such indemnification is not exclusive of other rights to
which such person shall be entitled under any By-law, agreement, vote of
stockholders or disinterested directors
II-1
<PAGE>
or otherwise, both as to action in such person's official capacity for or in
behalf of the Company and/or any subsidiary of the Company and as to action in
another capacity while holding such office and shall continue as to such
person who has ceased to be a director, officer, employee, or agent of the
Company and/or subsidiary of the Company and shall inure to the benefit of the
heirs, executors, and administrators of such person.
The Company expects to enter into indemnification agreements with each of
its executive officers and Directors prior to the completion of the Offering.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its incorporation on May 11, 1995, the Company has issued the
following securities without registration under the Securities Act of 1933
(the "Securities Act"):
(1) In connection with the Wesley Jessen Acquisition, the Company issued
on June 28, 1995 an aggregate of 415,000 shares of Class L Common Stock for
an aggregate purchase price of approximately $7,224,000.40 and 3,735,000
shares of Common Stock for an aggregate purchase price of approximately
$301,003.65 to Bain Capital Fund IV, L.P., Bain Capital Fund IV-B, L.P.,
BCIP Associates, BCIP Trust Associates, L.P., Randolph Street Partners and
Robert A. Sandler.
(2) Effective as of June 28, 1995, the Company issued to certain members
of management an aggregate of 11,534 shares of Class L Common Stock and
103,818 shares of Common Stock. The purchase price of the Class L Common
Stock and Common Stock was $17.40723 and $0.08059 per share, respectively.
(3) Effective as of July 11, 1995, the Company issued to a member of
management 2,500 shares of Class L Common Stock and 22,500 shares of Common
Stock. The purchase price of the Class L Common Stock and Common Stock was
$17.40723 and $0.08059 per share, respectively.
(4) Effective as of December 11, 1995, January 1, 1996, March 1, 1996 and
June 28, 1996, the Company issued to certain newly-hired members of
management 143, 214, 216 and 286 shares of Class L Common Stock,
respectively, and 1,286, 1,928, 1,932 and 2,572 shares of Common Stock,
respectively. In each case, the purchase price of the Class L Common Stock
and the Common Stock was $17.40723 and $0.08059 per share, respectively.
(5) On July 17, 1996, the Company issued to a member of management 107
shares of Class L Common Stock and 964 shares of Common Stock. The purchase
price of the Class L Common Stock and Common Stock was $17.40723 and
$0.08059 per share, respectively.
(6) On October 2, 1996, the Company issued a subordinated seller's note
in the aggregate principal amount of $5 million to Pilkington plc as part
of the consideration for the Barnes-Hind Acquisition.
The sales and issuances of securities listed above in paragraphs (1) and (6)
were deemed to be exempt from registration under the Securities Act by virtue
of Section 4(2) thereof, as transactions not involving a public offering. The
sales and issuances of securities listed above in paragraphs (2), (3), (4) and
(5) were deemed to be exempt from registration under the Securities Act by
virtue of Section 3(b) thereof and Rule 701 promulgated thereunder. All of the
information set forth in this Item 15 does not give effect to the
Reclassification and Stock Split (each as defined in the Prospectus which
forms a part of this Registration Statement).
II-2
<PAGE>
ITEM 16. EXHIBITS
(A) EXHIBITS.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
*1.1 Form of Purchase Agreement.
2.1 Purchase and Sale Agreement, dated as of May 5, 1995, between
Schering Corporation and WJ Acquisition Corp.+(1)
2.2 Agreement for Purchase and Sale, dated as of July 5, 1996, between
the Company and Pilkington plc.+(1)
3.1(i) Amended and Restated Certificate of Incorporation.(2)
3.1(ii) Amended and Restated By-laws.(2)
4.1 Certificate representing shares of Common Stock, $0.01 par value
per share.(1)
4.2 Stockholders Agreement, dated October 22, 1996, among the Company
and the stockholders named therein.(1)
4.3 Amended and Restated Registration Agreement, dated as of October
22, 1996, between the Company and the stockholders named
therein.(1)
4.4 Credit Agreement, dated as of February 19, 1997 and as amended as
of September 10, 1997, among Wesley Jessen VisionCare, Inc.,
Wesley-Jessen Corporation, various lending institutions, and
Bankers Trust Company, as Agent.+(3)
4.5 Security Agreement, dated as of February 19, 1997, among Wesley
Jessen VisionCare, Inc., Wesley-Jessen Corporation, certain other
subsidiaries of Wesley Jessen VisionCare, Inc. and Bankers Trust
Company, as Collateral Agent.+(2)
4.6 Pledge Agreement, dated as of February 19, 1997, by Wesley Jessen
VisionCare, Inc., Wesley-Jessen Corporation and certain other
subsidiaries of Wesley Jessen VisionCare, Inc. in favor of
Bankers Trust Company, as Collateral Trustee and Agent.+(2)
4.7 Subsidiary Guaranty, dated as of February 19, 1997, made by each
subsidiary of Wesley-Jessen Corporation named therein and Bankers
Trust Company, as Agent.(2)
4.8 Subordinated seller's note, dated as of October 2, 1996, by
Wesley-Jessen Corporation in favor of Pilkington plc.(1)
5.1 Opinion and consent of Kirkland & Ellis.
10.1 Wesley Jessen VisionCare, Inc. 1997 Stock Incentive Plan.(2)
10.2 Wesley Jessen VisionCare, Inc. Non-Employee Director Stock Option
Plan.(2)
10.3 Amended and Restated Advisory Agreement, dated as of October 2,
1996, between Wesley-Jessen Corporation and Bain Capital, Inc.(1)
10.4 Stock Purchase Agreement, dated as of June 28, 1995, among Wesley-
Jessen Holding, Inc. and the various purchasers named therein.(1)
10.5 Agreement, dated as of December 21, 1992, between Wesley-Jessen
Corporation and Tech Medical Inc., regarding casting cups, as
amended.(1)
10.6 Employment Agreement, dated June 28, 1995, between the Company and
Kevin J. Ryan.(1)
10.7 Employment Agreement, dated June 28, 1995, between the Company and
Edward J. Kelley.(1)
10.8 Wesley-Jessen Holding, Inc. 1995 Stock Purchase and Option
Plan.(1)
10.9 Wesley-Jessen Holding, Inc. 1996 Stock Option Plan.(1)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
10.10 Management Agreement, effective as of June 28, 1995 and dated as of
April 5, 1996, by and between the Company and Kevin J. Ryan (with an
attached schedule setting forth the terms of other Named
Executives).(1)
10.11 Indemnification Agreement, dated as of March 4, 1997 and effective as
of February 12, 1997, between Kevin J. Ryan and the Company with an
attached schedule listing the other officers and directors who
entered into such an agreement.(2)
10.12 Lease agreements relating to the Company's Southampton, United
Kingdom manufacturing facility.(1)
10.13 Lease agreements relating to the Company's San Diego, California
manufacturing facility.(1)
10.14 Wesley-Jessen Corporation Professional Incentive Program (1996).(1)
10.15 Wesley Jessen VisionCare, Inc. Employee Stock Discount Purchase
Plan.(2)
10.16 Asset Purchase Agreement, dated as of January 24, 1997, by and among
Wesley-Jessen Corporation, PBH, Inc. and The Cooper Companies,
Inc.+(2)
10.17 Unsecured promissory note, dated as of May 7, 1997, by Kevin J. Ryan
in favor of Wesley-Jessen Corporation.(4)
11.1 Earnings Per Share.
21.1 Subsidiaries of the Company.(1)
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included in signature page).
</TABLE>
--------
(1) Incorporated by reference to the applicable exhibit to the Registrant's
Registration Statement on Form S-1, Registration No. 333-17353.
(2) Incorporated by reference to the applicable exhibit to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1997, File No. 0-22033.
(3) Incorporated by reference to the applicable exhibit to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended September
27, 1997, File No. 0-22033.
(4) Incorporated by reference to the applicable exhibit to the Registrant's
Registration Statement on Form S-1, Registration No. 333-32493.
+ The Company agrees to furnish supplementally to the Commission a copy of
any omitted schedule or exhibit to such agreement upon request by
Commission.
* Filed herewith.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
CHICAGO, STATE OF ILLINOIS, ON NOVEMBER 12, 1997.
Wesley Jessen VisionCare, Inc.
/s/ Kevin J. Ryan
By: _________________________________
KEVIN J. RYAN
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
* * * *
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAVE BEEN SIGNED BY THE FOLLOWING PERSONS
IN THE CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
** Chairman of the November 12,
- ------------------------------------- Board 1997
STEPHEN G. PAGLIUCA
** President and November 12,
- ------------------------------------- Director (principal 1997
KEVIN J. RYAN executive officer)
** Chief Financial November 12,
- ------------------------------------- Officer, Treasurer 1997
EDWARD J. KELLEY and Director
(principal
financial officer)
II-6
<PAGE>
SIGNATURE TITLE DATE
** Vice President-- November 12,
- ------------------------------------- Controller 1997
RONALD J. ARTALE (principal
accounting
officer)
Director
- -------------------------------------
MICHAEL A. D'AMATO
** Director November 12,
- ------------------------------------- 1997
ADAM W. KIRSCH
Director
- -------------------------------------
SOL LEVINE
** Director November 12,
- ------------------------------------- 1997
JOHN W. MAKI
** Director November 12,
- ------------------------------------- 1997
JOHN J. O'MALLEY
- --------
**The undersigned, by signing his name hereto, does sign and execute this
Amendment No. 1 to the Registration Statement on behalf of the above named
officers and directors of the Company pursuant to the Power of Attorney
executed by such officers and directors and previously filed with the
Securities and Exchange Commission.
/s/ Kevin J. Ryan
-------------------------------------
KEVIN J. RYAN
ATTORNEY-IN-FACT
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE
------ ----------- ----
<C> <S> <C>
*1.1 Form of Purchase Agreement.
2.1 Purchase and Sale Agreement, dated as of May 5, 1995, between
Schering Corporation and WJ Acquisition Corp.+(1)
2.2 Agreement for Purchase and Sale, dated as of July 5, 1996,
between the Company and Pilkington plc.+(1)
3.1(i) Amended and Restated Certificate of Incorporation.(2)
3.1(ii) Amended and Restated By-laws.(2)
4.1 Certificate representing shares of Common Stock, $0.01 par
value per share.(1)
4.2 Stockholders Agreement, dated October 22, 1996, among the
Company and the stockholders named therein.(1)
4.3 Amended and Restated Registration Agreement, dated as of
October 22, 1996, between the Company and the stockholders
named therein.(1)
4.4 Credit Agreement, dated as of February 19, 1997 and as
amended as of September 10, 1997, among Wesley Jessen
VisionCare, Inc., Wesley-Jessen Corporation, various lending
institutions, and Bankers Trust Company, as Agent.+(3)
4.5 Security Agreement, dated as of February 19, 1997, among
Wesley Jessen VisionCare, Inc., Wesley-Jessen Corporation,
certain other subsidiaries of Wesley Jessen VisionCare, Inc.
and Bankers Trust Company, as Collateral Agent.+(2)
4.6 Pledge Agreement, dated as of February 19, 1997, by Wesley
Jessen VisionCare, Inc., Wesley-Jessen Corporation and
certain other subsidiaries of Wesley Jessen VisionCare, Inc.
in favor of Bankers Trust Company, as Collateral Trustee and
Agent.+(2)
4.7 Subsidiary Guaranty, dated as of February 19, 1997, made by
each subsidiary of Wesley-Jessen Corporation named therein
and Bankers Trust Company, as Agent.(2)
4.8 Subordinated seller's note, dated as of October 2, 1996, by
Wesley-Jessen Corporation in favor of Pilkington plc.(1)
5.1 Opinion and consent of Kirkland & Ellis.
10.1 Wesley Jessen VisionCare, Inc. 1997 Stock Incentive Plan.(2)
10.2 Wesley Jessen VisionCare, Inc. Non-Employee Director Stock
Option Plan.(2)
10.3 Amended and Restated Advisory Agreement, dated as of October
2, 1996, between Wesley-Jessen Corporation and Bain Capital,
Inc.(1)
10.4 Stock Purchase Agreement, dated as of June 28, 1995, among
Wesley-Jessen Holding, Inc. and the various purchasers named
therein.(1)
10.5 Agreement, dated as of December 21, 1992, between Wesley-
Jessen Corporation and Tech Medical Inc., regarding casting
cups, as amended.(1)
10.6 Employment Agreement, dated June 28, 1995, between the
Company and Kevin J. Ryan.(1)
10.7 Employment Agreement, dated June 28, 1995, between the
Company and Edward J. Kelley.(1)
10.8 Wesley-Jessen Holding, Inc. 1995 Stock Purchase and Option
Plan.(1)
10.9 Wesley-Jessen Holding, Inc. 1996 Stock Option Plan.(1)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE
------ ----------- ----
<C> <S> <C>
10.10 Management Agreement, effective as of June 28, 1995 and dated as
of April 5, 1996, by and between the Company and Kevin J. Ryan
(with an attached schedule setting forth the terms of other
Named Executives).(1)
10.11 Indemnification Agreement, dated as of March 4, 1997 and
effective as of February 12, 1997, between Kevin J. Ryan and
the Company with an attached schedule listing the other
officers and directors who entered into such an agreement.(2)
10.12 Lease agreements relating to the Company's Southampton, United
Kingdom manufacturing facility.(1)
10.13 Lease agreements relating to the Company's San Diego, California
manufacturing facility.(1)
10.14 Wesley-Jessen Corporation Professional Incentive Program
(1996).(1)
10.15 Wesley Jessen VisionCare, Inc. Employee Stock Discount Purchase
Plan.(2)
10.16 Asset Purchase Agreement, dated as of January 24, 1997, by and
among Wesley-Jessen Corporation, PBH, Inc. and The Cooper
Companies, Inc.+(2)
10.17 Unsecured promissory note, dated as of May 7, 1997, by Kevin J.
Ryan in favor of Wesley-Jessen Corporation.(4)
11.1 Earnings Per Share.
21.1 Subsidiaries of the Company.(1)
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney (included in signature page).
</TABLE>
- --------
(1) Incorporated by reference to the applicable exhibit to the Registrant's
Registration Statement on Form S-1, Registration No. 333-17353.
(2) Incorporated by reference to the applicable exhibit to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1997, File No. 0-22033.
(3) Incorporated by reference to the applicable exhibit to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended September 27,
1997, File No. 0-22033.
(4) Incorporated by reference to the applicable exhibit to the Registrant's
Registration Statement on Form S-1, Registration No. 333-32493.
+ The Company agrees to furnish supplementally to the Commission a copy of
any omitted schedule or exhibit to such agreement upon request by
Commission.
* Filed herewith.
<PAGE>
EXHIBIT 1.1
1,375,000 Shares
WESLEY JESSEN VISIONCARE, INC.
Common Stock
($.01 Par Value)
PURCHASE AGREEMENT
------------------
November __, 1997
BT Alex. Brown Incorporated
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Wesley Jessen VisionCare, Inc., a Delaware corporation (the "Company"),
Wesley Jessen Corporation, a Delaware corporation, (the "Principal Operating
Subsidiary" and together with each subsidiary of the Company, collectively, the
"Subsidiaries") and certain stockholders of the Company listed on Schedule I
hereto (the "Selling Shareholders"), confirm their respective agreements with BT
Alex. Brown Incorporated ("BT Alex. Brown" or the "Purchaser"), with respect to
the sale by the Selling Shareholders and the purchase by the Purchaser of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in Schedule I hereto (the "Shares"). Any
capitalized term used but not otherwise defined herein is used herein with the
meaning ascribed to such term in the Registration Statement. The Purchaser
proposes to offer the Shares for sale as set forth in the Prospectus (as
hereinafter defined).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-39867) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of
-1-
<PAGE>
Rule 434 and Rule 424(b). The information included in such prospectus or in
such Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Purchaser for use in connection with the
offering of the Shares is herein called the "Prospectus." If Rule 434 is relied
on, the term "Prospectus" shall refer to the preliminary prospectus dated July
31, 1997 together with the Term Sheet and all references in this Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties.
------------------------------
(a) Representations and Warranties of the Company and the Principal
Operating Subsidiary. The Company and the Principal Operating Subsidiary
each jointly and severally represent and warrant to the Purchaser as of the
date hereof and as of the Closing Date referred to in Section 2(b) hereof,
and agree with the Purchaser, as follows:
(i) Compliance with Registration Requirements. Each of the
-----------------------------------------
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. The
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complies in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and does 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 not misleading. Neither the Prospectus nor any amendments or
supplements thereto (including any
-2-
<PAGE>
prospectus wrapper), includes an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially
different", as such term is used in Rule 434, from the prospectus included
in the Registration Statement at the time it became effective. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement, Prospectus or
preliminary prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Purchaser expressly
for use in the Registration Statement, Prospectus or preliminary
prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Purchaser for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
--------------------
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company,
its consolidated subsidiaries, its Predecessor (as defined in the
Registration Statement) and, to the best of the Company's knowledge,
Barnes-Hind (as defined in the Registration Statement) at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company, its consolidated subsidiaries, its Predecessor and
Barnes-Hind for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The supporting schedules included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
-3-
<PAGE>
(iv) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries considered as
one enterprise, and (C) since June 28, 1995 there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(v) Good Standing of the Company and the Principal Operating
--------------------------------------------------------
Subsidiary. Each of the Company and the Principal Operating Subsidiary has
----------
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and each has corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and each of the Company and the
Principal Operating Subsidiary is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to
result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each Subsidiary of the Company
-----------------------------
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not reasonably be expected to result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through Subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. The only Subsidiaries of the Company
are the Subsidiaries listed on Exhibit 21.1 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company is as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement or pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus). The shares of issued
-4-
<PAGE>
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(viii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company and the Principal
Operating Subsidiary.
(ix) Authorization and Description of Shares. The Shares have been
---------------------------------------
duly authorized for issuance and sale to the Purchaser pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and non-assessable; the Common Stock conforms in
all material respects to all statements relating thereto contained in the
Prospectus and such description conforms in all material respects to the
rights set forth in the instruments defining the same; no holder of the
Shares will be subject to personal liability by reason of being such a
holder; and the issuance of the Shares is not subject to the preemptive or
other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any of its Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any Subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated herein and in the Registration Statement
(including the compliance by the Company and the Principal Operating
Subsidiary with its obligations hereunder) have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
reasonably be expected to result in a Material Adverse Effect) or under any
employee benefit plan of the Company, nor will such action result in any
material violation of the provisions of the charter or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person
-5-
<PAGE>
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any Subsidiary.
(xi) Compliance with Laws. The Company and each of the Subsidiaries
--------------------
are conducting their business in compliance with all the local, state,
federal and foreign laws, rules and regulations of the jurisdictions in
which each of the Company and the Subsidiaries is conducting business,
including, without limitation, those of the United States Food and Drug
Administration and the Federal Trade Commission, except where failure to be
so in compliance, singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on the business or financial
condition of the Company or any of its Subsidiaries.
(xii) Absence of Labor Dispute. No labor dispute with the employees
------------------------
of the Company or any Subsidiary exists or, to the knowledge of the Company
or the Principal Operating Subsidiary, is imminent, and neither the Company
nor the Principal Operating Subsidiary is aware of any existing or imminent
labor disturbance by the employees of any of its or any Subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or the Principal Operating Subsidiary, threatened, against or
affecting the Company or any Subsidiary, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the
Principal Operating Subsidiary of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company or
any Subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material Adverse
Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
-----------------------------------
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property,
including specifically but without limitation the patents listed on
Schedule II hereto, (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and neither the
-6-
<PAGE>
Company nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its Subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by each of the Company and the
Principal Operating Subsidiary of its obligations hereunder, in connection
with the offering, issuance or sale of the Shares hereunder or the
consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not reasonably
be expected to have a Material Adverse Effect; and neither the Company nor
any of its Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material
Adverse Effect.
(xviii) Title to Property. The Company and its Subsidiaries have
-----------------
good and marketable title to all real property owned by the Company and its
Subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (A) are
described in the Prospectus, or (B) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made or proposed to be made of such property by the Company or any of
its Subsidiaries; and all of the leases and subleases material to the
business of the Company and its Subsidiaries, considered as one enterprise,
and under which the Company or any of its Subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the
-7-
<PAGE>
Company or such Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with, and
------------------------
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the sale
----------------------
of the Shares as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or, to the best of the Company's knowledge, an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in material
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its Subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) Registration Rights. Other than as described in the
-------------------
Prospectus under the heading "Registration Agreement", there are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company under the 1933 Act. The Company has complied and is in
compliance in all material respects with the terms of the Registration
Rights Agreement dated as of October 22, 1996 (the "Registration Rights
Agreement"). Except for the Selling Shareholders with respect to the
Shares pursuant to the Registration Rights
-8-
<PAGE>
Agreement and except for the other parties to the Registration Rights
Agreement, no person has any right to require the Company to file a
registration statement under the 1933 Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to the
Registration Statement or otherwise. No further approval or authority of
the stockholders or Board of Directors of the Company is required for the
transfer and sale of the Shares to be sold by the Selling Shareholders. On
the Closing Date, the Shares will be free of any restrictions on transfer
imposed by the Company and will not be subject to any preemptive or similar
rights.
(b) Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to
the Purchaser as of the date hereof and as of the Closing Date, and agrees
with the Purchaser, as follows:
(i) Accurate Disclosure. The information furnished in writing by
-------------------
or on behalf of such Selling Shareholder expressly for use in the
Registration Statement and any amendments and supplements thereto does 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
regarding such Selling Shareholder therein not misleading, and the
information furnished in writing on behalf of such Selling Shareholder
expressly for use in the Prospectus does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements regarding such Selling Shareholder therein, in the light of
the circumstances under which they were made, not misleading.
(ii) Good and Marketable Title. Such Selling Shareholder has good
-------------------------
and marketable title to the Shares to be sold by such Selling Shareholder
hereunder, free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind, other than pursuant to
this Agreement; and upon delivery of such Shares and payment of the
purchase price therefor as herein contemplated, assuming the Purchaser has
no notice of any adverse claim, the Purchaser will receive good and
marketable title to the Shares purchased by it from such Selling
Shareholder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind. The sale of the
Shares pursuant to this Agreement is not prohibited by any law or
governmental regulation applicable to such Selling Shareholder.
(iii) Authorization of Agreements. Each Selling Shareholder has the
---------------------------
full right, power and authority to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by such Selling Shareholder
hereunder. The execution and delivery of this Agreement and the sale and
delivery of the Shares to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by such
Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any tax, lien, charge or encumbrance upon the Shares to be
sold by such Selling Shareholder or any property or assets of such Selling
-9-
<PAGE>
Shareholder pursuant to any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, license, lease or other agreement or
instrument to which such Selling Shareholder is a party or by which such
Selling Shareholder may be bound, or to which any of the property or assets
of such Selling Shareholder is subject, nor will such action result in any
violation of the provisions of the charter or by-laws or other
organizational instrument of such Selling Shareholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling Shareholder or
any of its properties.
(iv) Absence of Manipulation. Such Selling Shareholder has not
-----------------------
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(v) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in connection with the sale and delivery of
the Shares hereunder or the consummation of the transactions contemplated
by this Agreement, except such as may have previously been made or obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(vi) Certificates Suitable for Transfer. As of the date hereof,
----------------------------------
certificates for all of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank
with signatures guaranteed, have been delivered to Kirkland & Ellis,
counsel to the Company.
(vii) No Association with NASD. Except as previously disclosed to
------------------------
the Purchaser, neither such Selling Shareholder nor any of his or its
affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or is a
person associated with, or is an associated person of, or has any other
association with, any member firm of the National Association of Securities
Dealers, Inc. (the "NASD") within the meaning of Article I, Paragraphs (m)
and (q) of the By-laws of the NASD.
(viii) Other Information. The sale of the Shares by such Selling
-----------------
Shareholder pursuant hereto is not prompted by any information concerning
the Company or any of the Subsidiaries which is not set forth in the
Registration Statement. The information pertaining to such Selling
Shareholder under the caption "Principal and Selling Stockholders" in the
Prospectus is complete and accurate in all material respects. Without
having undertaken to determine independently the accuracy or completeness
of either the representations and warranties of the Company and the
Principal Operating Subsidiary contained herein or the information
contained in the Registration Statement, such Selling
-10-
<PAGE>
Shareholder has no reason to believe that the representations and
warranties of the Company or the Principal Operating Subsidiary contained
in this Section 1 are not true and correct, and has no knowledge of any
material fact, condition or information not disclosed in the Registration
Statement which has adversely affected or may adversely affect the business
of the Company or any of the Subsidiaries.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Purchaser or to counsel
for the Purchaser shall be deemed a representation and warranty by the
Company to the Purchaser as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholders as such and
delivered to the Purchaser or to counsel for the Purchaser pursuant to the
terms of this Agreement shall be deemed a representation and warranty by
each such Selling Shareholder to the Purchaser as to the matters covered
thereby.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
-----------------------------------------
(a) The Shares. On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth,
the Selling Shareholders agree to sell to the Purchaser and the Purchaser
agrees to purchase, at a price of $__.__ per share, the number of Shares
set forth opposite the name of each Selling Shareholder on Schedule I
hereto under the heading "Number of Shares to be Sold", subject to
adjustments in accordance with Section 9 hereof.
(b) Payment for the Shares. Payment for the Shares to be sold hereunder is
to be made by wire transfer of same-day funds to an account of each Selling
Shareholder for the Shares to be sold by such Selling Shareholder, in each
case against delivery of certificates therefor to the Purchaser. Such
payment and delivery is to be made at the offices of BT Alex. Brown
Incorporated, One South Street, Baltimore, Maryland, or such other place as
shall be agreed upon by the Purchaser and the Company, at 9:00 a.m.,
Baltimore time, on the third (fourth, if pricing occurs after 4:30 p.m.
(Eastern Time) on any given day) business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon (such time and date
being herein referred to as the "Closing Date"). As used herein, "business
day" means a day on which the New York Stock Exchange is open for trading
and on which banks in New York are open for business and not permitted by
law or executive order to be closed. The certificates for the Shares will
be delivered in such denominations and in such registrations as the
Purchaser requests in writing not later than the second full business day
prior to the Closing Date, and will be made available for inspection by the
Purchaser at least one business day prior to the Closing Date. It is
understood that the Purchaser is authorized, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Shares, which it has agreed to purchase.
(c) Failure to Deliver the Shares. If on the Closing Date any Selling
Shareholder fails to sell the Shares which such Selling Shareholder has
agreed to sell on such date as set forth in Schedule I hereto, the Company
agrees that it will sell or arrange for the sale of
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<PAGE>
that number of shares of Common Stock to the Purchaser which represents the
Shares which such Selling Shareholder has failed to so sell as set forth in
Schedule I hereto, or such lesser number as may be requested by the
Purchaser.
3. OFFERING BY THE PURCHASER.
-------------------------
(a) The Offering. The distribution of the Shares by the Purchaser may be
effected from time to time to purchasers directly or through agents, or
through brokers in brokerage transactions on the Nasdaq National Market, or
to dealers in negotiated transactions or in a combination of such methods
of sale, at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
4. COVENANTS.
---------
(a) Covenants of the Company. The Company covenants and agrees with the
Purchaser that:
(i) Compliance with Securities Regulations. The Company will (A) use
--------------------------------------
its best efforts to cause the Registration Statement to become effective
or, if the procedure in Rule 430A of the Rules and Regulations is followed,
to prepare and timely file with the Commission under Rule 424(b) of the
Rules and Regulations a Prospectus in a form approved by the Purchaser
containing information previously omitted at the time of effectiveness of
the Registration Statement in reliance on Rule 430A of the Rules and
Regulations, and (B) not file any amendment to the Registration Statement
or supplement to the Prospectus of which the Purchaser shall not previously
have been advised and furnished with a copy or to which the Purchaser shall
have reasonably objected in writing or which is not in compliance with the
Rules and Regulations. To the extent applicable, the copies of the
Registration Statement (including all exhibits filed therewith), any
preliminary prospectus or Prospectus furnished to the Purchaser shall be
identical to the copies thereof electronically filed with the Commission on
EDGAR, except to the extent permitted by Regulation S-T.
(ii) Notice of Action by the Commission. The Company will advise the
----------------------------------
Purchaser promptly (A) when the Registration Statement or any post-
effective amendment thereto shall have become effective, (B) of receipt of
any comments from the Commission, (C) of any request of the Commission for
amendment of the Registration Statement or for supplement to the Prospectus
or for any additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution
or threatening of any proceedings for that purpose. The Company will use
its best efforts to prevent the issuance of any such stop order preventing
or suspending the use of the Prospectus and to obtain as soon as possible
the lifting thereof, if issued.
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<PAGE>
(iii) Blue Sky Qualification. The Company will cooperate with the
----------------------
Purchaser in endeavoring to qualify the Shares for sale under the
securities laws of such jurisdictions as the Purchaser may reasonably have
designated in writing and will make such applications, file such documents,
and furnish such information as may be reasonably required for that
purpose, provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Purchaser may reasonably request for distribution of the Shares.
(iv) Delivery of Prospectuses. The Company will deliver to, or upon
------------------------
the order of, the Purchaser, from time to time, as many copies of any
preliminary prospectus as the Purchaser may reasonably request. The
Company will deliver to, or upon the order of, the Purchaser during the
period when delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Purchaser may reasonably request. The Company will
deliver to the Purchaser, at or before the Closing Date, four signed copies
of the Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Purchaser such number of
copies of the Registration Statement (including such number of copies of
the exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Purchaser may reasonably request.
(v) Continued Compliance with Securities Regulations. The Company
------------------------------------------------
will comply with the 1933 Act and the Rules and Regulations, and the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Shares as contemplated in this
Agreement and the Prospectus. If during the period in which a prospectus
is required by law to be delivered by an Purchaser or dealer, any event
shall occur as a result of which, in the judgment of the Company or in the
reasonable opinion of the Purchaser, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances existing at the time the Prospectus is delivered
to a purchaser, not misleading, or, if it is necessary at any time to amend
or supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with the law and the Company will furnish to the
Purchaser such number of copies of such amendment or supplement as the
Purchaser may reasonably request.
(vi) Rule 158. The Company will make generally available to its
--------
security holders, as soon as it is practicable to do so, but in any event
not later than 15 months after the effective date of the Registration
Statement, an earning statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months
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<PAGE>
beginning after the effective date of the Registration Statement, which
earning statement shall satisfy the requirements of Section 11(a) of the
1933 Act and Rule 158 of the Rules and Regulations and will advise you in
writing when such statement has been so made available.
(vii) Delivery of Reports. The Company will, for a period of three
-------------------
years from the Closing Date, deliver to the Purchaser copies of annual
reports and copies of all other documents, reports and information
furnished by the Company to its stockholders or filed with any securities
exchange pursuant to the requirements of such exchange or with the
Commission pursuant to the 1933 Act or the 1934 Act. To the extent
applicable, such reports and documents shall be identical to the copies
thereof electronically filed with the Commission on EDGAR, except to the
extent permitted by Regulation S-T.
(viii) Restriction on the Sale of Securities. During a period of 90
-------------------------------------
days from the date of the Prospectus, the Company will not, without the
prior written consent of BT Alex. Brown, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of any share of Common Stock
or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Shares to be sold hereunder, (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred
to in the Prospectus, or (C) any shares of Common Stock issued pursuant to
any non-employee director stock plan or employee stock purchase plan.
(ix) Listing. The Company will use its best efforts to list,
-------
subject to notice of issuance, the Shares to be sold by the Company on the
Nasdaq National Market. The Company will use its best efforts to effect and
maintain the quotation of the Shares on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by
the Nasdaq National Market of companies that have securities that are
traded in the over-the-counter market and quotations for which are reported
by the Nasdaq National Market.
(x) Use of Proceeds. The Company shall apply the net proceeds of
---------------
its sale of the Shares substantially as set forth in the Prospectus under
"Use of Proceeds."
(xi) Investment Company Act. The Company and the Selling
----------------------
Shareholders shall not invest, or otherwise use the proceeds received by the
Company or the Selling
-14-
<PAGE>
Shareholders from their sale of the Shares in such a manner as would
require the Company or any of the Subsidiaries to register as an investment
company under the 1940 Act.
(xii) Transfer Agent. The Company will maintain a transfer agent
--------------
and, if necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(xiii) Absence of Manipulation. The Company will not take, directly
-----------------------
or indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company
in violation of the 1933 Act or the Rules and Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder.
(b) Covenants of the Selling Shareholders. Each of the Selling
Shareholders covenants and agrees with the Purchaser that:
(i) Form W-9. In order to document the Purchaser's compliance with
--------
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act
of 1983 with respect to the transactions herein contemplated, each of the
Selling Shareholders agrees to deliver to you prior to or at the Closing
Date a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(ii) Absence of Manipulation. Such Selling Shareholder will not
-----------------------
take, directly or indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company
in violation of the 1933 Act or the Rules and Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder.
5. COSTS AND EXPENSES.
------------------
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company and the Selling Shareholders under
this Agreement, including, without limiting the generality of the foregoing, the
following: accounting fees of the Company; the fees and disbursements of
counsel for the Company; the cost of preparation, printing, filing, and
delivering to, or as requested by, the Purchaser copies of the Registration
Statement, preliminary prospectuses, the Prospectus, this Agreement, the Nasdaq
National Market Listing Application, the Blue Sky Survey and any supplements or
amendments thereto, and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Shares; the
filing fees of the Commission; (iii) the preparation, issuance and delivery of
the certificates for the Shares to the Purchaser, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Shares to the Purchaser; the filing fees incident to securing
any required review by the NASD of the terms of the sale of the Shares; the
Listing Fee of the Nasdaq National Market and the inclusion of the Shares to be
-15-
<PAGE>
sold by the Company on the Nasdaq National Market; the fees and expenses of any
transfer agent or registrar for the Shares; and the expenses, including the
reasonable fees and disbursements of counsel for the Purchaser, incurred in
connection with the qualification of the Shares under State securities or Blue
Sky laws. The Company shall not, however, be required to pay for any of the
Purchaser expenses (other than those related to qualification under NASD
regulation and State securities or Blue Sky laws) except that, if this Agreement
shall not be consummated because the conditions in Section 6 hereof are not
satisfied, or because this Agreement is terminated by the Purchaser pursuant to
Section 10 hereof or paragraphs (A) or (E) of Section 12(a)(i) hereof, or by
reason of any failure, refusal or inability on the part of the Company or the
Selling Shareholders to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure to satisfy said condition or to comply with said
terms be due to the default or omission of the Purchaser, then the Company shall
reimburse the Purchaser for reasonable out-of-pocket expenses, including
reasonable fees and disbursements of counsel for the Purchaser, reasonably
incurred in connection with investigating, marketing and proposing to market the
Shares or in contemplation of performing its obligations hereunder.
6. CONDITIONS OF OBLIGATIONS OF THE PURCHASER.
------------------------------------------
(a) Accuracy of Representations and Warranties; Performance of Covenants;
Other Conditions. The obligation of the Purchaser to purchase the Shares
on the Closing Date is subject to the accuracy, as of the Closing Date, of
the representations and warranties of the Company, the Principal Operating
Subsidiary and the Selling Shareholders contained herein, and to the
performance by the Company and the Selling Shareholders of their covenants
and obligations hereunder and to the following additional conditions:
(i) Effectiveness of the Registration Statement. The Registration
-------------------------------------------
Statement, including any Rule 462(b) Registration Statement, and all post-
effective amendments thereto shall have become effective and any and all
filings required by Rule 424 and Rule 430A of the Rules and Regulations
shall have been made, or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b), and any request of the Commission for additional information
(to be included in the Registration Statement or otherwise) shall have been
disclosed to the Purchaser and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission and no
injunction, restraining order, or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance of the Shares.
(ii) Opinions of Counsel for the Company. The Purchaser shall have
-----------------------------------
received on the Closing Date the opinions of: (A) Kirkland & Ellis, counsel
for the Company; (B) Sweeney, Lev & Blinkoff, counsel for the Company; and
(C) Brinks Hofer Gilson & Lione P.C., Intellectual Property counsel for the
Company, dated the Closing Date
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<PAGE>
addressed to the Purchaser in form and substance satisfactory to counsel
for the Purchaser and substantially in the forms set forth in Exhibit 1,
Exhibit 2 and Exhibit 3, respectively, and to such further effect as
counsel to the Purchaser may reasonably request.
(iii) Opinion of Counsel for the Purchaser. The Purchaser shall have
------------------------------------
received from Ropes & Gray, counsel for the Purchaser, an opinion dated the
Closing Date. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
Commonwealth of Massachusetts and the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Purchaser. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
its Subsidiaries and certificates of public officials.
(iv) Opinions of Counsel for the Selling Shareholders. On the
------------------------------------------------
Closing Date the Purchaser shall have received the favorable opinion, dated
as of the Closing Date, of (A) Kirkland & Ellis, counsel for certain of the
Selling Shareholders, and (B) Salvatore P. Palazzolo, counsel for BT
Investment Partners, Inc., or such other counsel as is reasonably
acceptable to counsel for the Purchaser, in each case in form and substance
satisfactory to counsel for the Purchaser and substantially in the forms
set forth in Exhibit 4 and Exhibit 5, respectively, and to such further
effect as counsel to the Purchaser may reasonably request.
(v) Blue Sky Survey. The Purchaser shall have received at or prior
---------------
to the Closing Date from Ropes & Gray a memorandum or summary, in form and
substance satisfactory to the Purchaser, with respect to the qualification
for offering and sale by the Purchaser of the Shares under the State
securities or Blue Sky laws of such jurisdictions as the Purchaser may
reasonably have designated to the Company.
(vi) Accountant's Comfort Letter. You shall have received, on each
---------------------------
of the dates hereof and the Closing Date, a letter from Price Waterhouse
LLP dated the date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to you and Price Waterhouse LLP, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(vii) Officers' Certificate. The Purchaser shall have received on
---------------------
the Closing Date a certificate or certificates of the Chief Executive
Officer and the Chief Financial Officer of the Company and the Principal
Operating Subsidiary to the effect that, as of the Closing Date each of
them severally represents in their capacity as an officer of the Company as
follows:
(A) The Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been received by
the Company, and to our
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<PAGE>
knowledge no such stop order has been issued under the 1933 Act
and no proceedings for that purpose have been initiated or
threatened by the Commission and any request of the Commission
for inclusion of additional information in the Registration
Statement has been complied with;
(B) The representations and warranties of the Company and the
Principal Operating Subsidiary contained in Section 1(a) of the
Purchase Agreement are true and correct, on and as of the Closing
Date with the same force and effect as if expressly made on and
as of the Closing Date;
(C) All filings required to have been made pursuant to Rules 424
or 430A under the 1933 Act have been made;
(D) The Company and the Principal Operating Subsidiary has
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(E) The Registration Statement of the Company on Form S-1
(Registration No. 333-39867), in the form in which it was
declared effective by the Commission on November __, 1997, and
the Prospectus dated November __, 1997, contain all statements
which are required to be stated therein in accordance with the
1933 Act and the rules and regulations of the Commission
thereunder and neither the Registration Statement nor the
Prospectus contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(F) Since the time the Registration Statement was declared
effective, no event has occurred which should have been set forth
in a supplement to or amendment of the Registration Statement or
the Prospectus which has not been so set forth in such supplement
or amendment;
(G) Since the respective dates as of which information is given
in the Registration Statement and Prospectus, there has not been
any material adverse change or any development involving a
prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business;
(H) No action, suit or proceeding at law or in equity is pending
or, to the knowledge of the Company, threatened against the
Company or any Subsidiary that would be required to be set forth
in the Prospectus other than as set forth therein and no
proceedings are pending or, to the
-18-
<PAGE>
knowledge of the Company, threatened against the Company
before or by any government, governmental instrumentality or
court, domestic or foreign, that could result in any material
adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise,
other than as set forth in the Prospectus; and
(I) No event of default exists under any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party
or to which the Company or any Subsidiary is subject, except
where such default would not reasonably be expected to result
in a Material Adverse Effect.
(viii) Secretary's Certificate. The Purchaser shall have received on
-----------------------
the Closing Date a certificate or certificates of the Secretary of the
Company and the Principal Operating Subsidiary in form and substance
reasonably satisfactory to the Purchaser.
(ix) Certificates of the Selling Shareholders. On the Closing Date
----------------------------------------
the Purchaser shall have received a certificate from each of the Selling
Shareholders, dated as of the Closing Date to the effect that (i) the
representations and warranties of such Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same
force and effect as though expressly made at and as of the Closing Date,
and (ii) such Selling Shareholder has complied in all material respects
with all agreements and all conditions on its part to be performed under
this Agreement at or prior to the Closing Date.
(x) Approval of Listing. At the Closing Date the Shares shall
-------------------
have been approved for listing on the Nasdaq National Market, subject only
to official notice of issuance.
(xi) No Objection. The NASD shall have confirmed that it has not
------------
raised any objection with respect to the fairness and reasonableness of the
underwriting or other terms and arrangements.
(b) Compliance with Requirements. The opinions and certificates mentioned
in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in all material respects reasonably satisfactory to
the Purchaser and to Ropes & Gray, counsel for the Purchaser.
(c) Additional Documents. At the Closing Date counsel for the Purchaser
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale
of the Shares as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Shares as herein
contemplated
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<PAGE>
shall be reasonably satisfactory in form and substance to the Purchaser and
counsel for the Purchaser.
(d) Termination of Agreement. If any of the conditions hereinabove
provided for in this Section 6 shall not have been fulfilled when and as
required by this Agreement to be fulfilled, the obligations of the
Purchaser hereunder may be terminated by the Purchaser by notifying the
Company and the Selling Shareholders of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Selling
Shareholders, the Company and the Purchaser shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof and except that Sections 1, 8 and 14 shall survive any such
termination and remain in full force and effect).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLING SHAREHOLDERS.
---------------------------------------------------------
The obligations of the Selling Shareholders to sell and deliver the portion
of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued and in
effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
---------------
(a) Indemnification of the Purchaser by the Company and the Principal
Operating Subsidiary. The Company and the Principal Operating Subsidiary
agree to indemnify and hold harmless the Purchaser and each person, if any,
who controls the Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all losses, claims,
expenses, damages or liabilities to which the Purchaser or any such
controlling person may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading; and will reimburse the Purchaser and each
such controlling person on demand for any amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 8(c) below) any such settlement
is effected with the written consent of the Company; and will reimburse the
Purchaser and each such controlling person upon demand for any legal or
other expenses reasonably incurred by the Purchaser or such controlling
person in connection with investigating or defending any such loss, claim,
expense, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares,
whether or not the Purchaser or controlling person
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<PAGE>
is a party to any action or proceeding; provided that the Company and the
Principal Operating Subsidiary will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
or through the Purchaser specifically for use in the preparation thereof;
provided, further, that such indemnity with respect to any preliminary
prospectus shall not inure to the benefit of the Purchaser from whom the
person asserting such loss, claim, damage or liability purchased the Shares
which are the subject thereof if such person did not receive a copy of the
Prospectus (as supplemented or amended) at or prior to the confirmation of
the sale of the Shares to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission or alleged
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the Prospectus. This indemnity agreement will
be in addition to any liability which the Company or the Principal
Operating Subsidiary may otherwise have.
(b) Indemnification of the Purchaser by the Selling Shareholders. Each
Selling Shareholder severally and not jointly will indemnify and hold
harmless the Purchaser, and each person, if any, who controls the Purchaser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any losses, claims, damages or liabilities to which the
Purchaser or any person who controls the Purchaser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement thereto, or (ii)
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by
the Purchaser or any person who controls the Purchaser within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act in connection
with investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that each Selling Shareholder will
be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any preliminary
prospectus, the Prospectus or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company or
the Purchaser by or through the Selling Shareholder specifically for use in
the preparation thereof; provided, further, that such indemnity with
respect to any preliminary prospectus shall not inure to the benefit of the
Purchaser from whom the person asserting such loss, claim, damage or
liability purchased the Shares which are the subject thereof if such person
did not receive a copy of the Prospectus (as supplemented or amended) at or
prior to the confirmation of the sale of the Shares to such person in any
case where such delivery is required by the 1933 Act and the untrue
statement or omission or alleged untrue statement or omission of
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<PAGE>
material fact contained in the preliminary prospectus was corrected in the
Prospectus. In no event, however, shall the liability of any Selling
Shareholder for indemnification under this Section 8(b) exceed the proceeds
received by such Selling Shareholder from the Purchaser hereunder. This
indemnity agreement will be in addition to any liability which the Selling
Shareholders may otherwise have. The Company agrees that the Selling
Shareholders may implead the Company in any action in which the Purchaser
or any such controlling person is seeking indemnification from the Selling
Shareholders. The Company, the Principal Operating Subsidiary, the Selling
Shareholders and the Purchaser acknowledge and agree that the only
information furnished or to be furnished to the Company for inclusion in
any prospectus or the Registration Statement by any Selling Shareholder
consists of the information set forth under the caption "Principal and
Selling Stockholders" (including the notes thereto) in the Registration
Statement, any preliminary prospectus, the Prospectus and any amendment or
supplement thereto.
(c) Indemnification of the Company, Directors, Officers and Selling
Shareholders. The Purchaser severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, the Selling Shareholders, and each
person, if any, who controls the Company or the Selling Shareholders within
the meaning of the 1933 Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, Selling
Shareholder or controlling person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, Selling Shareholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that the Purchaser will be liable
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has
been made in the Registration Statement, any preliminary prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or through
the Purchaser specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the
Purchaser may otherwise have.
(d) Actions Against Parties; Notification; Settlement Without Consent. In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in
Section 8(a), (b) or (c) shall be available to any party who shall fail to
give notice as provided in this Section 8(d) if the party to whom notice
was not given was
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<PAGE>
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure
to give such notice shall not relieve the indemnifying party or parties
from any liability which it or they may have to the indemnified party for
contribution or otherwise than on account of the provisions of Section
8(a), (b) or (c). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party and shall pay as
incurred the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel at its own expense. Notwithstanding
the foregoing, the indemnifying party shall pay as incurred (or within 30
days of presentation) the reasonable fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them,
or (iii) the indemnifying party shall have failed to assume the defense and
employ counsel acceptable to the indemnified party within a reasonable
period of time after notice of commencement of the action. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm for all
such indemnified parties. Such firm shall be designated in writing by you
in the case of parties indemnified pursuant to Section 8(a) or (b) and by
the Company and the Selling Shareholders in the case of parties indemnified
pursuant to Section 8(c). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment (provided that such indemnified party is entitled to
indemnification under Section 8(a), (b) or (c) hereunder). In addition,
the indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action or proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 8(a), (b)
or (c) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into, (iii) such
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indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement, and (iv)
the indemnifying party has not delivered a notice to the indemnified party
at least 30 days prior to such settlement being entered into setting forth
its reasonable objections to such request.
(e) Contribution. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, expenses,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, expenses, damages or liabilities (or actions or proceedings
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Principal Operating
Subsidiary and the Selling Shareholders on the one hand and the Purchaser
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company, the Principal Operating Subsidiary and the
Selling Shareholders on the one hand and the Purchaser on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Principal Operating
Subsidiary and the Selling Shareholders on the one hand and the Purchaser
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company, the Principal Operating Subsidiary and the Selling Shareholders
and the total discounts and commissions received by the Purchaser, in each
case as set forth on the cover page of the Prospectus or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
public offering price of the Shares. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Principal Operating Subsidiary or the Selling Shareholders on
the one hand or the Purchaser on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the provisions of this
Section 8(e), (i) no Selling Shareholder shall be required to contribute
any amount in excess of the amount of the total net proceeds received by
such Selling Shareholder from the Shares purchased from such Selling
Shareholder, and (ii) the Purchaser shall not be required to contribute any
amount in excess of the amount by which the total price at which the Shares
purchased by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Purchaser has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
(f) Limitation on Contribution. The Company, the Selling Shareholders and
the Purchaser agree that it would not be just and equitable if
contributions pursuant to Section
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8(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in Section 8(e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to above in Section
8(e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
subsection (e), (i) the Purchaser shall not be required to contribute any
amount in excess of the discounts and commissions applicable to the Shares
purchased by the Purchaser, (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation, and (iii) no Selling Shareholder shall be
required to contribute any amount in excess of the proceeds received by
such Selling Shareholder from the Purchaser in the Offering.
(g) Rights of Controlling Persons. For purposes of this Section 8, each
person, if any, who controls the Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Purchaser, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and any Selling Shareholder
shall have the same rights to contribution as the Company, the Principal
Operating Subsidiary or such Selling Shareholders, as the case may be.
(h) Consent to Jurisdiction. In any proceeding relating to the
Registration Statement, any preliminary prospectus, the Prospectus or any
supplement or amendment thereto, each party against whom contribution may
be sought under this Section 8 hereby consents to the jurisdiction of any
court having jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and agrees
that any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing party is
a party.
(i) Payments. Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company, the
Principal Operating Subsidiary or the Selling Shareholders set forth in
this Agreement or in certificates shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of the
Purchaser or any person controlling the Purchaser, the Company, its
directors or officers or any persons controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Purchaser, or to the
Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
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<PAGE>
(j) Effect on Other Agreements. The provisions of this Section shall not
amend, alter or otherwise affect any agreement among the Company and the
Selling Shareholders with respect to indemnification, including the
Registration Rights Agreement.
9. DEFAULT BY PURCHASER.
--------------------
If on the Closing Date the Purchaser shall fail to purchase and pay for the
portion of the Shares which the Purchaser has agreed to purchase (otherwise than
by reason of any default on the part of the Company or a Selling Shareholder),
this Agreement will terminate without liability on the part of the Purchaser or
of the Company or of the Selling Shareholders except to the extent provided in
Section 8 hereof.
10. DEFAULT BY SELLING SHAREHOLDERS.
-------------------------------
(a) Default by Selling Shareholders. If any Selling Shareholder shall fail
at the Closing Date to sell and deliver the number of Shares which such
Selling Shareholders are obligated to sell hereunder and the Company does
not sell or arrange for the sale of that number of Shares in accordance
with Section 2(d), then the Purchaser may, at the option of the Purchaser,
by notice from the Purchaser to the non-defaulting Selling Shareholders,
either (a) terminate this Agreement without any liability on the fault of
any non-defaulting party except that the provisions of Sections 1, 5 and 8
shall remain in full force and effect or (b) elect to purchase the Shares
which the non-defaulting Selling Shareholders have agreed to sell
hereunder. No action taken pursuant to this Section 10 shall relieve any
Selling Shareholder so defaulting from liability, if any, in respect of
such default.
(b) Delay of Closing Dates. In the event of a default by any Selling
Shareholder as referred to in this Section 10, each of the Purchaser and
the non-defaulting Selling Shareholders shall have the right to postpone
the Closing Date for a period not exceeding seven days in order to effect
any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
11. NOTICES.
-------
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered, telecopied or telegraphed and
confirmed as follows: if to the Purchaser, to BT Alex. Brown Incorporated, One
South Street, Baltimore, Maryland 21202, Attention: Syndicate; with a copy to BT
Alex. Brown Incorporated, One South Street, Baltimore, Maryland 21202,
Attention: General Counsel; and with a copy to Ropes & Gray, One International
Place, Boston, Massachusetts 02110, Attention: David B. Walek, Esq.; if to the
Company or the Selling Shareholders, to Wesley Jessen VisionCare, Inc., 333 East
Howard Avenue, Des Plaines, Illinois 60018, Attention: Chief Executive Officer;
with a copy to Kirkland & Ellis, 200 East Randolph Street, Chicago, Illinois
60601, Attention: Dennis M. Myers, Esq.
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<PAGE>
12. TERMINATION.
-----------
(a) Termination; General. This Agreement may be terminated by you by
notice to the Selling Shareholders as follows:
(i) at any time prior to the Closing Date if any of the following has
occurred: (A) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse
change or any development involving a prospective material adverse change
in or affecting the condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a whole, whether
or not arising in the ordinary course of business; (B) any outbreak or
escalation of hostilities or declaration of war or national emergency or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets
of the United States would, in your reasonable judgment, make it
impracticable to market the Shares or to enforce contracts for the sale of
the Shares; (C) suspension of trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market or limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on either such exchange or the
Nasdaq National Market, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental
authority; (D) declaration of a banking moratorium by United States or New
York State authorities; (E) the suspension, or the material limitation, of
trading of the Company's common stock by the Commission on The Nasdaq
National Market; or (vii) the taking of any action by any governmental body
or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets
in the United States; or
(ii) as provided in Sections 6, 9 and 10 of this Agreement.
13. SUCCESSORS.
----------
This Agreement has been and is made solely for the benefit of the
Purchaser, the Company, the Principal Operating Subsidiary and the Selling
Shareholders and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Purchaser, the Company and
the Principal Operating Subsidiary and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained.
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<PAGE>
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Purchaser, the Company and the Principal
Operating Subsidiary and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of any of the Shares from the
Purchaser shall be deemed a successor or assign merely because of such purchase.
14. INFORMATION PROVIDED BY THE PURCHASER.
-------------------------------------
The Company, the Principal Operating Subsidiary, the Selling Shareholders
and the Purchaser acknowledge and agree that the only information furnished or
to be furnished by the Purchaser to the Company for inclusion in any Prospectus
or the Registration Statement consists of the information set forth in the last
paragraph on the front cover page of the Prospectus (insofar as such information
relates to the Purchaser), the legends required by Item 502(d) of Regulation S-K
under the 1933 Act on the inside front cover page of the Prospectus, and the
information under the caption "Plan of Distribution" in the Prospectus.
15. MISCELLANEOUS.
-------------
(a) Survival of Agreements. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries
submitted pursuant hereto shall remain in full force and effect regardless
of (a) any termination of this Agreement, (b) any investigation made by or
on behalf of the Purchaser or controlling person thereof, or by or on
behalf of the Company or its directors or officers, and (c) delivery of and
payment for the Shares under this Agreement.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Maryland.
(c) Section Headings. The Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
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<PAGE>
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Principal
Operating Subsidiary, the Selling Shareholders and the Purchaser in accordance
with its terms.
Very truly yours,
WESLEY JESSEN VISIONCARE, INC.
By:_______________________________
Name:
Title:
WESLEY JESSEN CORPORATION
By:_______________________________
Name:
Title:
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<PAGE>
BAIN CAPITAL FUND IV, L.P.
By: Bain Capital Partners IV, L.P.
Its General Partner
By: Bain Capital Investors, Inc.
Its General Partner
By:_______________________________
Name:
Title: Managing Director
BAIN CAPITAL FUND IV-B, L.P.
By: Bain Capital Partners IV, L.P.
Its General Partner
By: Bain Capital Investors, Inc.
Its General Partner
By:_______________________________
Name:
Title: Managing Director
BCIP ASSOCIATES
By:_______________________________
Name:
Title: General Partner
BCIP TRUST ASSOCIATES, L.P.
By:_______________________________
Name:
Title: General Partner
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<PAGE>
COMBINED JEWISH PHILANTHROPIES
By:_______________________________
Name:
Title:
-31-
<PAGE>
CORPORATION OF THE PRESIDENT OF
THE CHURCH OF JESUS CHRIST OF
LATTER DAY SAINTS
By:_______________________________
Name:
Title:
-32-
<PAGE>
FIDELITY INVESTMENTS CHARITABLE
GIFTS FUND
By:_______________________________
Name:
Title:
-33-
<PAGE>
BT INVESTMENT PARTNERS, INC.
By:_______________________________
Name:
Title:
-34-
<PAGE>
The foregoing Purchase Agreement is
hereby confirmed and accepted as of the
date first above written.
BT ALEX. BROWN INCORPORATED
By:_______________________________
Name:
Title:
-35-
<PAGE>
SCHEDULE I
SCHEDULE OF SELLING SHAREHOLDERS
NUMBER OF
SHARES
SELLING SHAREHOLDER TO BE SOLD
- ------------------- ----------
Bain Capital Fund IV, L.P.
Bain Capital Fund IV-B, L.P.
BCIP Trust Associates, L.P.
BCIP Associates
BT Investment Partners, Inc.
Combined Jewish Philanthropies
Corporation of the President of the Church
of Jesus Christ of Latter Day Saints
Fidelity Investments Charitable Gifts Fund
----------
TOTAL 1,375,000
==========
<PAGE>
SCHEDULE II
SCHEDULE OF PATENTS
<PAGE>
EXHIBIT 1
FORM OF OPINION OF
COUNSEL FOR THE COMPANY
<PAGE>
EXHIBIT 2
FORM OF OPINION OF
COUNSEL FOR THE COMPANY
<PAGE>
EXHIBIT 3
FORM OF OPINION OF INTELLECTUAL
PROPERTY COUNSEL FOR THE COMPANY
<PAGE>
EXHIBIT 4
FORM OF OPINION OF COUNSEL
FOR THE SELLING SHAREHOLDERS
<PAGE>
EXHIBIT 5
FORM OF OPINION OF COUNSEL
FOR THE SELLING SHAREHOLDERS
