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30,000,000 SHARES
AMERICAN NATIONAL CAN GROUP, INC.
COMMON STOCK
NOMINAL VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation ("CSFBC"),
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Pechiney, a French societe anonyme ("SELLING
STOCKHOLDER"), proposes to sell (the "OFFERING") to the several Underwriters
named in Schedule A hereto ("UNDERWRITERS") outstanding shares ("FIRM
SECURITIES") of the common stock, nominal value $0.01 per share ("SECURITIES"),
of American National Can Group, Inc., a Delaware corporation ("COMPANY"). CSFBC,
Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
shall act as representatives (the "REPRESENTATIVES") of the several
Underwriters.
In addition, as set forth below, the Selling Stockholder proposes to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than additional shares of Securities ("OPTIONAL SECURITIES" and,
collectively with the Firm Securities, the "OFFERED SECURITIES").
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-76699) relating to the
Offered Securities, including a form of prospectus relating to the
Securities, has been filed with the Securities and Exchange Commission
("Commission") and either (A) has been declared effective under the
Securities Act of 1933 ("ACT") and is not proposed to be amended or (B)
is proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "INITIAL REGISTRATION STATEMENT") has
been declared effective, either (I) an additional registration
statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (II) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the
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most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Act or (if no such filing is required)
as included in the Registration Statement, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement complied as to form in all respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement complied,
or will comply, as to form in all respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of any Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each complies as to form, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will comply as to form, in all respects to
the requirements of the Act and the Rules and Regulations, and none of
such documents, nor the Prospectus, includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will comply as to form in all respects to the requirements
of the Act and the Rules and Regulations, none of such documents, nor
the Prospectus, will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not
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misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and, except as would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT"), other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except in this
latter case for such matters as would not, individually or in the
aggregate, have a Material Adverse Effect.
(iv) Each Significant Subsidiary (as defined by Rule 1-02(w)
of Regulation S-X) and , and (each, a
"Significant Subsidiary") has been duly incorporated and is an existing
corporation in good standing (with respect to the subsidiaries
incorporated in a jurisdiction of the United States) under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each Significant Subsidiary of the
Company is duly qualified to do business as a foreign corporation in
good standing (with respect to the subsidiaries incorporated in a
jurisdiction of the United States) in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except in this latter case for such
matters as would not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly and validly
authorized and issued and is fully paid and nonassessable; and the
capital stock of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholder of
the Company has no preemptive rights with respect to the Offered
Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the Offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 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 a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Offered Securities have been approved for listing
on The New York Stock Exchange (the "NYSE") subject to notice of
issuance.
(ix) Except in connection with the reorganization of the
Company as described in the Prospectus, no consent, approval,
authorization, or order of, or filing with, any governmental agency or
body or any court is required to be obtained or made by the Company for
the consummation of the transactions contemplated by this Agreement or
in connection with the sale of the Offered Securities, except such as
have been obtained and made under the Act and such as may be required
under state securities laws.
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(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any statute or any rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any Significant
Subsidiary of the Company or any of their properties, except such as
would not, individually or in the aggregate, have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities, (B) any agreement or instrument to which the Company or any
such Significant Subsidiary is a party or by which the Company or any
such Significant Subsidiary is bound or to which any of the properties
of the Company or any such Significant Subsidiary is subject, except
such as would not, individually or in the aggregate, have a Material
Adverse Effect, or (C) the charter or by-laws of the Company or any
such Significant Subsidiary, and the Company has full power and
authority to execute and perform its obligations under this Agreement.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company and is the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(xii) Except as disclosed in the Prospectus, the Company and
its Significant Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them that,
individually or in the aggregate, are material to it or them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Prospectus,
the Company and its Significant Subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(xiii) The Company and its Significant Subsidiaries possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any
of its Significant Subsidiaries, would individually or in the aggregate
have Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent that might reasonably be expected to result in a Material
Adverse Effect.
(xv) Except as disclosed in the Prospectus, the Company and
its Significant Subsidiaries own, possess or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its Significant Subsidiaries, would individually or
in the aggregate result in a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, each of the
Company and its subsidiaries is in compliance with all applicable
statutes, and all applicable rules, regulations, requirements,
decisions and orders of, and agreements with, any governmental agency
or body and any court, relating to (A) the protection of human health
and safety as related to Hazardous Substances or environmental or
workplace matters, (B) the generation, presence, use, handling,
transportation, storage, treatment, disposal, emanation or release of
hazardous or toxic substances, materials or wastes, including without
limitation petroleum or any fraction thereof, asbestos, and
polychlorinated biphenyls ("HAZARDOUS SUBSTANCES"), or (C) other
environmental matters, including without limitation pollution,
protection, investigation, cleanup or restoration of the environment or
natural resources (collectively, "HSE LAWS"), subject in each case to
such exceptions as would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
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(xvii) Except as disclosed in the Prospectus, each of the
Company and its subsidiaries has received, and is in compliance with
all terms and conditions of, all permits, licenses, variances or other
approvals required of it under applicable HSE Laws ("HSE PERMITS") in
order to conduct its business as presently conducted, subject to such
exceptions as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is subject to any pending or
threatened claims or proceedings, and to the Company's knowledge there
are no past or present events, conditions or circumstances that are
reasonably likely to give rise to costs, liabilities, claims or
proceedings, in each case arising from, relating to or based on (A) HSE
Laws, (B) HSE Permits, or (C) the generation, presence, use, handling,
transportation, storage, treatment, disposal, emanation or release of
Hazardous Substances or the investigation or cleanup thereof, whether
on-site or off-site, which would reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(xix) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is subject to any pending or, to
the Company's knowledge, threatened proceeding associated with any HSE
Laws or HSE Permits to which the government is a party and which are
reasonably likely to result in monetary fines or penalties of $100,000
or more.
(xx) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xxi) PriceWaterhouseCoopers LLP, who have certified the
combined financial statements of the Company and the combined companies
included in the Prospectus and delivered their report with respect to
such combined financial statements included in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act and the applicable rules and regulations
thereunder.
(xxii) The combined financial statements and the selected
financial information set forth under the caption "Summary Selected
Combined Financial Information" included in each Registration Statement
and the Prospectus, in each case together with the notes and footnotes
thereto, present fairly the financial position of the Company and the
combined companies as of the dates shown and their results of
operations and cash flows for the periods shown, and such combined
financial statements and selected combined financial information have
been prepared in conformity with the generally accepted accounting
principles in the United States ("GAAP") applied on a consistent basis;
and the assumptions used in preparing the unaudited pro forma combined
financial information included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
combined financial statement amounts.
(xxiii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
known to the Company involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xxiv) The Company is not and, after giving effect to the
Offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
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(xxv) The Company has not distributed and, prior to the later
of (A) any Closing Date and (B) the completion of the distribution of
the Offered Securities (as notified to the Company pursuant to the last
paragraph of Section 3 hereof), will not distribute any offering
material in connection with the Offering other than each Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto.
(xxvi) Neither the Company nor any of its affiliates (as
defined in the Act), nor any person acting on behalf of any of them
has, directly or indirectly, (A) taken any action designed to cause or
to result in, or that has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered Securities, or (B) since the filing
of the Initial Registration Statement (I) sold, bid for, purchased, or
paid anyone any compensation for soliciting purchases of, the Offered
Securities or (II) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company.
(xxvii) The Company and each of its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations; (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxviii) Except as described in or contemplated by the
Prospectus, no Significant Subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, making any other distribution on such Significant Subsidiary's
capital stock, repaying to the Company any loans or advances to such
Significant Subsidiary from the Company or transferring any of such
Significant Subsidiary's property or assets to the Company or any other
Significant Subsidiary of the Company, and the Company is not currently
prohibited, directly or indirectly, from paying any dividends or making
any other distribution on its capital stock.
(xxix) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed, which returns are
true, correct and complete in all material respects, or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes shown
to be due on such tax returns and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such tax, assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the Prospectuses, except in any case in which the
failure so to pay would not have a Material Adverse Effect.
(xxx) (A) No ERISA Event (as defined below) has occurred or is
expected to occur, and no condition exists, or is expected to exist,
that could reasonably be expected to result in any such ERISA Event.
The aggregate Underfunding (as defined below) with respect to all Plans
(as defined below), other than those the liability for which is
reflected in the Company's financial statements, which have any
Underfunding does not exceed $10,000,000. The reorganization of the
Company as described in the Prospectus and the Offering will not,
directly or indirectly, result in any liability, or a material risk of
any such liability, to any Plan (as defined below) or the Pension
Benefit Guaranty Corporation ("PBGC").
(B) [The PBGC has agreed with the Company that it will
not terminate any of the Plans or impose any conditions on the Company,
other than conditions which the Company has satisfied or will satisfy,
as a result of the reorganization of the Company as described in the
Prospectus and the Offering.]
(C) Neither the Company nor any of its Significant
Subsidiaries has incurred unsatisfied liabilities in connection with
withdrawals from Multiemployer Plans and Multiple Employer Plans (each
as defined below), if any, in excess of an aggregate amount of
$1,000,000. Neither the Company nor any of its ERISA Affiliates
reasonably may be expected to incur, directly or indirectly, liability
with respect to Multiemployer Plans and Multiple Employer Plans that
would, individually or in the aggregate have a Material Adverse Effect.
The reorganization of the Company as described in the Prospectus and
the
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Offering will not, directly or indirectly, result in any such withdrawal
liability or a material risk of any such liability.
As used herein, the following terms shall have the
respective meaning ascribed to each below.
"CODE" means the United States Internal Revenue Code
of 1986, as amended, and the regulations promulgated and the
rulings issued thereunder.
"ERISA" means the United States Employee Retirement
Income Security Act of 1974, as amended, and the regulations
promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means the Company and each trade or
business (whether or not incorporated) that would be treated
together with the Company as a single employer under Title IV
or Section 302 of ERISA or Section 412 of the Code.
"ERISA EVENT" means (i) the occurrence of a
"reportable event" described in Section 4043 of ERISA (other
than a "reportable event" not subject to the provision for
30-day notice), or (ii) the provision or filing of a notice of
intent to terminate a Plan (other than in a standard
termination within the meaning of Section 4041 of ERISA) or
the treatment of a Plan amendment as a distress termination
under Section 4041 of ERISA, or (iii) the institution of
proceedings to terminate a Plan by the Pension Benefit
Guaranty Corporation, or (iv) the existence of any
"accumulated funding deficiency" or "liquidity shortfall"
(within the meaning of Section 302 of ERISA or Section 412 of
the Code), whether or not waived, or the filing of an
application pursuant to Section 412(e) of the Code or Section
304 of ERISA for any extension of an amortization period, or
(v) the receipt of notice by the Company or any ERISA
Affiliate that any Multiemployer Plan may be terminated,
partitioned or reorganized or that any Multiple Employer Plan
may be terminated, or (vi) the occurrence of any transaction
which might reasonably be expected to constitute grounds for
the imposition of liability under Section 4069 of ERISA.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means an employee benefit
plan described in Section 4063 of ERISA.
"PLAN" means an employee benefit plan subject to
Title IV of ERISA, Section 302 of ERISA or Section 412 of the
Code, other than a Multiemployer Plan, with respect to which
the Company or any of its subsidiaries could be subject to any
liability.
"UNDERFUNDING" means, with respect to any Plan, the
"amount of unfunded benefit liabilities" of such Plan with the
meaning of ERISA Section 4001(a)(18).
(xxxi) Except as disclosed in the Prospectus, no default
exists, and no event has occurred which, with notice or lapse of time
or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of their respective
properties is bound that would, individually or in the aggregate, have
a Material Adverse Effect.
(xxxii) With respect to the consummation of the reorganization
of the Company as described in the Prospectus and the Offering, (A) all
notices required to be given to lenders, joint venture partners,
customers, suppliers and any other party to any material agreement or
instrument to which the Company or any Significant Subsidiary is a
party or by which the Company or any such Significant Subsidiary is
bound (each, a "CONTRACTING PARTY") have been given as required, (B)
all consents, approvals and authorizations
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required to be obtained from any Contracting Party have been obtained
as required, except for such consents, approvals and authorizations the
failure to obtain would not, individually or in the aggregate, have a
Material Adverse Effect, and (C) no consent, approval, authorization,
or order of, or filing with, any governmental agency or body or any
court is required to be obtained or made by the Company. Except as
disclosed in the Prospectus, the execution, delivery and performance of
this Agreement, and the consummation of the reorganization of the
Company as described in the Prospectus and the transactions herein
contemplated will not give any Contracting Party the right to terminate
any material agreement or instrument to which the Company or any
Significant Subsidiary is a party or by which the Company or any such
Significant Subsidiary is bound.
(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters as to the matters set forth in subsections
(a)(ii), (iii), (v), (vii), (xiv), (xx), (xxiii) and (xxxii) above, and further,
that:
(i) [Appropriate representation regarding selling stockholder
shareownership to be inserted.] The Selling Stockholder has full right,
power and authority to enter into this Agreement and will on the
Closing Date have full right, power and authority to sell, assign,
transfer and deliver the Offered Securities to be delivered by the
Selling Stockholder on such Closing Date hereunder.
(ii) The execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Selling
Stockholder; and this Agreement has been duly executed and delivered by
the Selling Stockholder and is the valid and binding agreement of the
Selling Stockholder, enforceable against the Selling Stockholder in
accordance with its terms.
(iii) Neither the Selling Stockholder nor any person acting on
its behalf has, directly or indirectly, (A) taken any action designed
to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Offered Securities or (B) since the filing of the Initial
Registration Statement (I) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Offered Securities or
(II) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the sale of Offered Securities by the Selling Stockholder
under this Agreement).
(iv) The sale by the Selling Stockholder of Offered Securities
pursuant hereto is not prompted by any material adverse information
concerning the Company or its subsidiaries that is not set forth in the
Registration Statement or the Prospectus.
(v) The sale of the Offered Securities to the Underwriters by
the Selling Stockholder pursuant to this Agreement, the execution,
delivery and performance by the Selling Stockholder of this Agreement
and the consummation of the other transactions herein contemplated will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Selling Stockholder or any
subsidiary of the Selling Stockholder or any of their properties, or
any agreement or instrument to which the Selling Stockholder or any
such subsidiary is a party or by which the Selling Stockholder or any
such subsidiary is bound or to which any of the properties of the
Selling Stockholder or any such subsidiary is subject, or the charter
or by-laws of the Selling Stockholder or any such subsidiary.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder
and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the Offering.
(vii) The Selling Stockholder has not distributed and, prior
to the later of (A) any Closing Date and (B) the completion of the
distribution of the Offered Securities, will not distribute any
offering material in connection with the Offering other than each
Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto.
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(viii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
known to the Selling Stockholder involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(c) The above representations and warranties shall be deemed to be
repeated on each Closing Date, and all references therein to the Offered
Securities and the Closing Date shall be deemed to refer to the Firm Securities
or the Optional Securities and the First Closing Date (as defined below) or the
applicable Optional Closing Date (as defined below), each as applicable.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Selling Stockholder agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Selling Stockholder, at a purchase price of U.S.$
per share, the respective numbers of shares of Firm Securities set forth
opposite the names of the Underwriters in Schedules A and B hereto, as
applicable.
The Selling Stockholder will deliver the Firm Securities to CSFBC, for
the accounts of the Underwriters, against payment of the purchase price in U.S.
dollars in Federal (same day) funds by wire transfer to an account at a bank
notified by the Selling Stockholder to CSFBC at the office of Cleary, Gottlieb,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One Liberty Plaza, New York, New York, at A.M.,
New York time, on , 1999, or at such other time not later than seven
full business days thereafter as CSFBC and the Selling Stockholder determine, as
applicable, such time being herein referred to as the "FIRST CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the Offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholder from time to time (but no more than a total of three
times) not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities.
The Selling Stockholder agrees to sell to the Underwriters such
Optional Securities and the Underwriters agree, severally and not jointly, to
purchase such Optional Securities. Such Optional Securities shall be purchased
for the account of each Underwriter in the same proportion as the number of
shares of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions), and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC on behalf of
Underwriters to the Selling Stockholder. It is understood that CSFBC is
authorized to make payment for and accept delivery of such Optional Securities
on behalf of the Underwriters pursuant to the terms of CSFBC's instructions to
the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is received by the Selling Stockholder.
The Selling Stockholder will deliver the applicable Optional Securities being
purchased on each Optional Closing Date to CSFBC, for the accounts of the
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to an account at a bank notified by the Selling
Stockholder to CSFBC, at the above office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇.
The certificates for the Optional Securities
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being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ at a reasonable time in advance of such Optional Closing Date.
CSFBC shall notify the Company and the Selling Stockholder upon the
completion of the distribution of the Offered Securities.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. (a)
The Company agrees with the several Underwriters that:
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b), not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b).
If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) at or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time either
Prospectus is printed and distributed to any Underwriter or Manager, or
will make such filing at such later date as shall have been consented
to by CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's prior consent, which consent shall not be unreasonably
withheld; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and any
amendment to or supplement of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its
reasonable efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will notify CSFBC promptly upon becoming aware of such
event and will promptly prepare and, in the case of the Prospectus,
file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 6.
(iv) Not later than the Availability Date (as defined below),
the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning
after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the
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Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of
the Registration Statement (three of which will be signed and will
include all exhibits), each preliminary prospectus relating to the
Offered Securities, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CSFBC requests. The Prospectus shall be so furnished in
New York City on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement
or the Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The Selling
Stockholder will pay the expenses of printing and distributing all such
documents to the Underwriters.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions in the
United States as CSFBC designates and will continue such qualifications
in effect so long as required for the distribution.
(vii) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders.
(viii) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including any
filing fees and other expenses (including fees and disbursements of
counsel) in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions in the United States as CSFBC
designates and the printing of memoranda relating thereto, the filing
fee incidental to, and the reasonable and properly documented fees and
disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities and expenses incurred in distributing preliminary
Prospectus and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(ix) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC.
(b) The Selling Stockholder agrees with the several Underwriters and
the Company that:
(i) The Selling Stockholder will, unless otherwise paid by the
Company pursuant to Section 5(a)(viii), pay all expenses incident to
the performance of the obligations of the Selling Stockholder and the
obligations of the Company under this Agreement, including any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions in the United States as CSFBC
designates and the printing of memoranda relating thereto, the filing
fee incident to, and the reasonable fees and disbursements of counsel
to the Underwriters in connection with, the preview by the National
Association of Securities Dealers, Inc. of the Offered Securities, any
travel expenses of the Company's or the Selling Stockholder's officers
and employees and any other expenses of the Company and the Selling
Stockholder in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, any transfer taxes on
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the sale of the Offered Securities to the Underwriters and expenses
incurred in distributing preliminary Prospectus and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(ii) The Selling Stockholder will indemnify and hold harmless
the Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Selling Stockholder hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Selling Stockholder is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the Selling Stockholder shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made.
(iii) The Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First Closing
date a properly completed and executed United States Treasury
Department Form W-8 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(iv) The Selling Stockholder agrees, for a period of 180 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, without the prior written consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the written statements of Company and Selling Stockholder officers
made pursuant to subsections (f) and (g) below, to the performance by the
Company and the Selling Stockholder of their respective obligations hereunder
and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be at
or prior to the time of filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to
such Effective Time), of PriceWaterhouseCoopers LLP confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the combined financial
statements examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited interim combined financial
statements included in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available unaudited
interim combined financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
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(A) the unaudited interim combined financial
statements included in the Registration Statements do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with GAAP;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five business
days prior to the date of such letter, there was any
change in the capital stock or any increase in
short-term indebtedness or long-term debt of the
Company and the combined companies or, at the date of
the latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in
the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
combined net sales, net operating income or the total
or per share amounts of combined income before
extraordinary items or net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus disclose
have occurred or may occur or which are described in such
letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and the combined
companies subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(v) on the basis of a reading of the unaudited pro
forma combined condensed financial information included in the
Registration Statements and the Prospectus, carrying out
certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth
in this clause (v), inquiries of certain officials of the
Company and the combined companies and the Selling Stockholder
who have responsibility for financial and accounting matters
and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the
unaudited pro forma combined condensed financial information,
nothing came to their attention that caused them to believe
that the unaudited pro forma combined condensed financial
information do not comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such information.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement but the Effective Time of the Additional Registration
is subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "Prospectus" shall mean the prospectus relating to the
Securities included in the Registration Statements and the
corresponding form of prospectus relating to the International
Securities.
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(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time either Prospectus is printed
and distributed to any Underwriter or Manager, or shall have occurred
at such later date as shall have been consented to by CSFBC. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a)(i) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Selling Stockholder, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions as would, in
the judgment of a majority in interest of the Underwriters including
the Representatives, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities, or
(ii)(A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
(B) any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (C) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (D) any banking moratorium declared
by U.S. Federal or New York authorities; or (E) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by the U.S. Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Shearman & Sterling, counsel for the Company and
the Selling Stockholder, [and General Counsel opinions] to the effect
that: [description to be inserted.]
(e) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion
or opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on
such Closing Date, the Registration Statements, the Prospectus and
other related matters as the Representatives may require, and the
Selling Stockholder and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(f) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers shall state that, to the best of their knowledge after
reasonable investigation: the representations and warranties of the
Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of
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Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time either Prospectus was printed and distributed to
any Underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event known to such officer
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Selling Stockholder in
which such officers shall state that, to the best of their knowledge
after reasonable investigation, the representations and warranties of
the Selling Stockholder in this Agreement are true and correct, and the
Selling Stockholder has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date.
(h) The Representatives shall have received a letter, dated
such Closing Date, of PriceWaterhouseCoopers LLP which reaffirms the
statements made in the letter furnished pursuant to subsection (a) of
this Section, except that the specified date referred to in such letter
will be a date not more than five days prior to such Closing Date for
the purposes of this subsection.
[INCLUDE ADDITIONAL CONDITIONS RELATED TO ANY ADDITIONAL STEPS
OF THE REORGANIZATION NOT COMPLETED AT THE TIME OF SIGNING]
The Selling Stockholder and the Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents required by the terms of this Agreement as the
Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, with respect
to the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company 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 in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only information furnished by
any Underwriter consists of the information described as such in subsection (c)
below; and provided further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter, or any of its partners, directors or
officers or any person, if any, who controls such Underwriter within the meaning
of Section 15 of the Act, from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required to
be delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities to such person, a
copy of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter.
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(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling Stockholder will
not be liable in any such case (i) unless and to the extent that a court holds
that the indemnification by the Company provided for in subsection (a) above is
unenforceable in whole or in part and such indemnification is therefore
unavailable or insufficient, or unless such indemnification by the Company is
otherwise insufficient, to hold fully harmless an indemnified party under such
subsection (a), and (ii) 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 in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers, the Selling Stockholder and
each person, if any who controls the Company or the Selling Stockholder within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company, the Selling Stockholder or any such
controlling person of the Company or the Selling Stockholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon 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 each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person or the Selling
Stockholder or controlling person of the Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of (i) the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting" and the information contained in the first table and the
last paragraph under the caption "Underwriting"; and (ii) the following
information in the Prospectus furnished on behalf of CSFBC: the last sentence of
the twelfth paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section, for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
an unconditional
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release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriters on the
other from the Offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the Offering of the
Offered Securities (before deducting expenses) received by the Selling
Stockholder bear to the total underwriting discounts and commissions received by
the Underwriters. 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 Selling Stockholder or any Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement, to the Selling Stockholder and to each person, if any,
who controls the Company or the Selling Stockholder within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase the Offered Securities hereunder on any Closing
Date and the aggregate number of shares of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Selling Stockholder for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Selling Stockholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholder, except as
provided in Section 9 (provided that if such default occurs with respect to the
Optional Securities after the First Closing Date, this
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Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Selling Stockholder shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company, the Selling Stockholder and the
Underwriters pursuant to Section 7 shall remain in effect and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (C),
(D) or (E) of Section 6(c)(ii), the Selling Stockholder will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the Offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and (a) if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to: the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group; (b) if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; and (c) if sent to
the Selling Stockholder, will be mailed, delivered or telegraphed and confirmed
to it at ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, Attention:
Directeur Juridique du Groupe; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing. Any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Stockholder hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Selling
Stockholder irrevocably appoints [insert name and address of authorized agent],
as its authorized agent in the Borough of Manhattan in The City of New York upon
which process may be served in any such suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the
Company by the person serving the same to the address provided in Section 10,
shall be deemed in every respect effective service of process upon the Company
or the Selling Stockholder, as the case may be, in any such suit or proceeding.
The Selling Stockholder further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such agent in full
force and effect for a period of seven years from the date of this Agreement.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
Pechiney,
by
-----------------------------------
Name:
Title:
American National Can Group, Inc.,
by
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
The Underwriters
CREDIT SUISSE FIRST BOSTON CORPORATION
--------------------------------------
--------------------------------------
Acting on behalf of themselves and as
the Representatives of the several
Underwriters named in Schedule A hereto.
BY CREDIT SUISSE FIRST BOSTON CORPORATION
by
--------------------------------------
Name:
Title:
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SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation....................
Deutsche Bank Securities Inc..............................
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.......................................
▇▇▇▇▇▇ Brothers Inc.......................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated........
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc..................................
---------------
Total............................................
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