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Exhibit 1.2
S&S DRAFT
01/06/99
▇▇▇▇▇▇▇ & CO.
(a Delaware corporation)
776,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: , 1999
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Table of Contents
INTERNATIONAL PURCHASE AGREEMENT
SECTION 1. Representations and Warranties................................................4
(a) Representations and Warranties by the Company.................................4
(i) Compliance with Registration Requirements............................4
(ii) Incorporated Documents...............................................5
(iii) Financial Statements.................................................5
(iv) No Material Adverse Change in Business...............................5
(v) Good Standing of the Company.........................................6
(vi) Good Standing of Subsidiaries........................................6
(vii) Capitalization.......................................................6
(viii) Authorization of Agreements..........................................7
(ix) Absence of Defaults and Conflicts....................................7
(x) Absence of Proceedings...............................................7
(b) Representations and Warranties by the Selling Shareholder.....................8
(i) Accurate Disclosure..................................................8
(ii) Authorization of Agreements..........................................8
(iii) Good and Marketable Title............................................9
(iv) Due Execution of Power of Attorney and Custody Agreement.............9
(v) Absence of Manipulation..............................................9
(vi) Absence of Further Requirements.....................................10
(vii) Certificates Suitable for Transfer..................................10
(viii) No Association with NASD............................................10
(c) Officer's Certificates.......................................................10
SECTION 2. Sale and Delivery to International Managers; Closing.........................10
(a) Initial Securities...........................................................10
(b) Option Securities............................................................11
(c) Payment......................................................................11
(d) Denominations; Registration..................................................12
SECTION 3. Covenants of the Company.....................................................12
(a) Compliance with Securities Regulations and Commission Requests...............12
(b) Filing of Amendments.........................................................13
(c) Delivery of Registration Statements..........................................13
(d) Delivery of Prospectuses.....................................................13
(e) Continued Compliance with Securities Laws....................................14
(f) Blue Sky Qualifications......................................................14
(g) Rule 158.....................................................................15
(h) Listing......................................................................15
(i) Restriction on Sale of Securities............................................15
(j) Reporting Requirements.......................................................15
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SECTION 4. Payment of Expenses..........................................................15
(a) Expenses of the Company......................................................15
(b) Expenses of the Selling Shareholder..........................................16
(c) Termination of Agreement.....................................................16
(d) Allocation of Expenses.......................................................16
SECTION 5. Conditions of International Managers' Obligations............................16
(a) Effectiveness of Registration Statement......................................16
(b) Opinions of Counsel for Company..............................................17
(c) Opinions of Counsel for the Selling Shareholder..............................17
(d) Opinion of Counsel for International Managers................................17
(e) Officers' Certificate........................................................17
(f) Certificate of Selling Shareholder...........................................18
(g) Accountants' Comfort Letter..................................................18
(h) Bring-down Comfort Letter....................................................18
(i) Approval of Listing..........................................................18
(j) Purchase of Initial U.S. Securities..........................................18
(k) Conditions to Purchase of International Option Securities....................19
(l) Additional Documents.........................................................20
(m) Termination of Agreement.....................................................20
SECTION 6. Indemnification..............................................................20
(a) Indemnification of International Managers....................................20
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder..................................................................22
(c) Actions against Parties; Notification........................................22
(d) Settlement without Consent if Failure to Reimburse...........................23
(e) Other Agreements with Respect to Indemnification.............................23
SECTION 7. Contribution.................................................................23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...............25
SECTION 9. Termination of Agreement.....................................................25
(a) Termination; General.........................................................25
(b) Liabilities..................................................................26
SECTION 10. Default by One or More of the International Managers.........................26
SECTION 11. Notices......................................................................27
SECTION 12. Parties......................................................................27
SECTION 13. Governing Law and Time.......................................................27
SECTION 14. Effect of Headings...........................................................27
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SCHEDULES
Schedule A - List of International Underwriters.......................................Sch A-1
Schedule B - Pricing Information......................................................Sch B-1
Schedule C - List of Subsidiaries.....................................................Sch C-1
EXHIBITS
Exhibit A-1-1 - Form of Opinion of the Company's General Counsel .................... A-1-1
Exhibit A-1-2 - Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ...................... A-2-1
Exhibit B - Form of Opinion of Counsel for the Selling Shareholder .................. B-1
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▇▇▇▇▇▇▇ & CO.
(a Delaware corporation)
776,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
ING BARINGS
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ & Co., a Delaware corporation (the "Company"), and Mitsukoshi,
Ltd., a Japanese corporation (the "Selling Shareholder"), confirm their
respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ING Barings are acting as representatives (in such capacity,
the "Lead Managers"), with respect to (i) the sale by the Selling Shareholder,
and the purchase by the International Managers, acting severally and not
jointly, of 776,000 shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") and (ii) the grant by the Selling Shareholder to the
International Managers, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 78,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 776,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 78,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company and the Selling Shareholder are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for (i) the offering by the Selling Shareholder
of an aggregate of 3,104,000 shares of Common Stock (the
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"Initial U.S. Securities") through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters") for which ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC are acting as
representatives (the "U.S. Representatives") and (ii) the grant by the Selling
Shareholder to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion of
up to 312,000 additional shares of Common Stock solely to cover over-allotments,
if any (the "U.S. Option Securities" and, together with the International Option
Securities, the "Option Securities"). The Initial U.S. Securities and the U.S.
Option Securities are hereinafter called the "U.S. Securities". It is understood
that the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholder understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) covering
the registration of the Securities 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 Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the Form
of U.S. Prospectus, except for their respective front cover pages, sections
entitled "Underwriting" and back cover pages. The information included in such
prospectus or in such Term Sheet, as the case may be,
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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 Form of International Prospectus and
Form of U.S. 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, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, 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 Form of International Prospectus and the final
Form of U.S. Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "International Prospectus" and the "U.S.
Prospectus", respectively, and, collectively, the "Prospectuses". If Rule 434 is
relied on, the terms "International Prospectus" and "U.S. Prospectus" shall
refer to the preliminary International Prospectus dated , 1999 and
preliminary U.S. Prospectus dated , 1999, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International 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 ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. 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.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will 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 of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers or by the Selling Shareholder
expressly for use in the Registration Statement or the International
Prospectus.
Each preliminary prospectus and the prospectuses 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 Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically
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transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of
Delivery), did not and will 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.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries 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, if any, 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 Prospectuses 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.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, 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) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
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(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company 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 result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") 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
Prospectuses 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 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 Schedule C hereto.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholder, 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, including the Securities to be purchased by the Underwriters
from the Selling Shareholder, was issued in violation of the preemptive
or other similar rights of any securityholder of the Company arising
under applicable law, under the Company's charter or by-laws or under
any agreement to which the Company is a party.
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(viii) Authorization of Agreements. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) 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 result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the U.S. Purchase
Agreement and the consummation of the transactions contemplated in this
Agreement, the U.S. Purchase Agreement and in the Registration
Statement and compliance by the Company with its obligations under this
Agreement and the U.S. Purchase Agreement 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 result in a Material Adverse Effect), nor will such action
result in any 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, nor will such action cause the preferred
share purchase rights issued pursuant to the Rights Agreement, dated as
of November 17, 1988, as amended, between the Company and Chase
Manhattan Bank, successor to Manufacturers Hanover Trust Company, as
Rights Agent, (the "Rights Agreement") to become exercisable or cause
any Underwriter to become an Acquiring Person (as defined in the Rights
Agreement). 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 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.
(x) 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, 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
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expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; 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, could
not reasonably be expected to result in a Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to each International Manager as of
the date hereof, as of the Closing Time, and as of each Date of Delivery (if
any) and agrees with each International Manager, as follows:
(i) Accurate Disclosure. To the best knowledge of the Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectuses and neither of the Prospectuses nor any
amendments or supplements thereto includes any 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, except that the representations
and warranties set forth in this paragraph 2(b)(i) shall only apply to
statements or omissions in the Registration Statement or the
Prospectuses with reference to information relating to such Selling
Shareholder; the Selling Shareholder is not prompted to sell the
Securities to be sold by the Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement, the
U.S. Purchase Agreement and a Power of Attorney and Custody Agreement
(the "Power of Attorney and Custody Agreement") and to sell, transfer
and deliver the Securities to be sold by the Selling Shareholder
hereunder and under the U.S. Purchase Agreement. The execution and
delivery of this Agreement, the U.S. Purchase Agreement and the Power
of Attorney and Custody Agreement and the sale and delivery of the
Securities to be sold by the Selling Shareholder and the consummation
of the transactions contemplated herein and therein and compliance by
the Selling Shareholder with its obligations hereunder and thereunder
have been duly authorized by the 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 Securities to be sold by the Selling
Shareholder or any property or assets of the Selling Shareholder
pursuant to any contract, indenture, mortgage, deed of
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trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder may be bound, or to which any of the
property or assets of the Selling Shareholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of the 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 the Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. The Selling Shareholder has
and will at the Closing Time and on each Date of Delivery have good and
marketable title to the International Securities to be sold by the
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
International Securities and payment of the purchase price therefor as
herein contemplated, assuming each such International Manager has no
notice of any adverse claim, each of the International Managers will
receive good and marketable title to the International Securities
purchased by it from the Selling Shareholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
The Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Global Coordinator, the Power of Attorney
and Custody Agreement with___________ as attorney(s)-in-fact (the
"Attorney(s)-in-Fact") and ___________, as custodian (the "Custodian");
the Custodian is authorized by the Selling Shareholder to deliver the
International Securities to be sold by the Selling Shareholder
hereunder and to accept payment therefor; and the Attorney-in-Fact is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 5(f) or that may be required pursuant to
Sections 5(k) and 5(l) on behalf of the Selling Shareholder, to sell,
assign and transfer to the International Managers the International
Securities to be sold by the Selling Shareholder hereunder, to
determine the purchase price to be paid by the International Managers
to the Selling Shareholder, as provided in Section 2(a) hereof, to
authorize the delivery of the International Securities to be sold by
the Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of the Selling Shareholder in connection
with this Agreement.
(v) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted
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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 Securities.
(vi) 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 the Selling
Shareholder of its obligations hereunder, under the U.S. Purchase
Agreement or in the Power of Attorney and Custody Agreement, or in
connection with the sale and delivery of the Securities hereunder or
under the U.S. Purchase Agreement or the consummation of the
transactions contemplated by this Agreement or the U.S. Purchase
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.
(vii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling Shareholder pursuant to
this Agreement and the U.S. Purchase 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
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant to
this Agreement and the U.S. Purchase Agreement.
(viii) No Association with NASD. Neither the Selling
Shareholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
Lead Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholder as such and delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Selling
Shareholder to each International Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholder agrees
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to sell to each International Manager, severally and not jointly, and each
International Manager, severally and not jointly, agrees to purchase from the
Selling Shareholder, at the price per share set forth in Schedule B, the number
of Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of International
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholder hereby grants an option to the International
Managers, severally and not jointly, to purchase up to an additional 78,000
shares of Common Stock, at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company and to the Selling Shareholder
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven (7) full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Global Coordinator, the Company and
the Selling Shareholder, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten (10) business days after such
date as shall be agreed upon by the Global Coordinator, the Company and the
Selling Shareholder (such time and date of payment and delivery being herein
called "Closing Time").
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In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator, the Company and the Selling
Shareholder, on each Date of Delivery as specified in the notice from the Global
Coordinator to the Company and the Selling Shareholder.
Payment shall be made to the Selling Shareholder by wire transfer of
immediately available funds to a bank account designated by the Custodian
pursuant to the Selling Shareholder's Power of Attorney and Custody Agreement,
against delivery to the Lead Managers for the respective accounts of the
International Managers of certificates for the International Securities to be
purchased by them. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial International
Securities and the International Option Securities, if any, which it has agreed
to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
International Managers, may (but shall not be obligated to) make payment of the
purchase price for the Initial International Securities to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities shall be in such denominations and registered in such
names as the Lead Managers may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case may be.
The certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the Lead Managers in The City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or
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suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)),
any Term Sheet or any amendment, supplement or revision to either any
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Global Coordinator with copies
of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which the Global Coordinator or counsel for the
International Managers shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Lead Managers and counsel for the
International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the International Managers. The copies of the
Registration Statement and each amendment thereto furnished to the
International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each International Manager, without charge, as many copies of each
preliminary prospectus as such International Manager reasonably
requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to
each International Manager, without charge, during the period when the
International Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the International Prospectus
(as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any
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amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T. The expenses of complying with this
Section 3(d) shall be borne by the Company or by the Selling
Shareholder in the manner contemplated by Section 4 in respect of any
amendment or supplement required during the nine-month period after the
date of this Agreement and by the International Managers thereafter.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
U.S. Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel
for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order
that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time any such Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or
supplement as the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less
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than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(i) Restriction on 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 the Global Coordinator, (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) 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 and referred to in the Prospectus, (B)
any shares of Common Stock issued 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 dividend
reinvestment plan.
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses of the Company. The
Company will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (iv) the
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qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the preparation and delivery to the Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any
transfer agent or registrar for the Securities, and (vii) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange.
(b) Expenses of the Selling Shareholder. The Selling Shareholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, (ii) the fees
and disbursements of its counsel and accountants and (iii) the costs of printing
the Registration Statement, each preliminary prospectus, any Term Sheets and the
Prospectuses and any amendments or supplements thereto.
(c) Termination of Agreement. If this Agreement is terminated by the
Lead Manager in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Selling Shareholder shall reimburse the International
Managers for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the International Managers.
(d) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement that the Company and the Selling Shareholder may have made
or may hereinafter make for the sharing of such costs and expenses.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholder contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholder of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the International Managers and to the
Selling Shareholder. A prospectus containing the Rule 430A
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Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) 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).
(b) Opinions of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinions, dated as of
Closing Time, of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
Secretary and General Counsel of the Company, and (ii) ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance
satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit A-1 and
Exhibit A-2, respectively, hereto and to such further effect as counsel
to the International Managers may reasonably request.
(c) Opinions of Counsel for the Selling Shareholder. At the
Closing Time, the Lead Managers shall have received the favorable
opinions, dated as of the Closing Time, of (i) Salans ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, U.S. counsel for the Selling Shareholder,
and (ii) , Japanese counsel for the Selling Shareholder, in
form and substance satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in
Exhibit B-1 and Exhibit B-2, respectively, hereto and to such further
effect as counsel to the International Managers may reasonably request.
(d) Opinion of Counsel for International Managers. At the
Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of the Closing Time, of Shearman & Sterling, counsel
for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers with
respect to the matters set forth in clauses and the
penultimate paragraph of Exhibit A-2 hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. 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.
(e) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectuses, any 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, and
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the Lead Managers shall have received a certificate of the Company
signed by the President or a Vice President of the Company and by the
chief financial or chief accounting officer of the Company, dated as of
the Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the
Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the knowledge
of the officers signing the certificate, are pending or are
contemplated by the Commission.
(f) Certificate of Selling Shareholder. At the Closing Time,
the Lead Managers shall have received a certificate of an
Attorney-in-Fact on behalf of the Selling Shareholder, dated as of the
Closing Time, to the effect that (i) the representations and warranties
of the 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 Time and (ii) the 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 Time.
(g) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Lead Managers shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together with signed or
reproduced copies of such letter for each of the other International
Managers containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At the Closing Time, the Lead
Managers shall have received from PricewaterhouseCoopers LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of
this Section 5, except that the specified date referred to shall be a
date not more than three (3) business days prior to the Closing Time.
(i) Approval of Listing. At the Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange.
(j) Purchase of Initial U.S. Securities. Contemporaneously
with the purchase by the International Managers of the Initial
International Securities under this Agreement,
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the U.S. Underwriters shall have purchased the Initial U.S.
Securities under the U.S. Purchase Agreement.
(k) Conditions to Purchase of International Option Securities.
In the event that the International Managers exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of
the Company and the Selling Shareholder contained herein and the
statements in any certificates furnished by the Company, any subsidiary
of the Company or the Selling Shareholder hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the Company signed by the President or a
Vice President of the Company and by the chief financial or
chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholder. A
certificate, dated such Date of Delivery, of an
Attorney-in-Fact on behalf of the Selling Shareholder
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(iii) Opinions of Counsel for Company. The favorable
opinions of (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President,
Secretary and General Counsel of the Company, and (B) ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and
substance satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinions
required by Section 5(b) hereof.
(iv) Opinions of Counsel for the Selling Shareholder.
The favorable opinions of (A) Salans ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, U.S. counsel for the Selling Shareholder,
and (B) , Japanese counsel for the Selling
Shareholder, in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery,
relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinions required by Section 5(c) hereof.
(v) Opinion of Counsel for International Managers.
The favorable opinion of Shearman & Sterling, counsel for the
International Managers, dated such Date of Delivery, relating
to the International Option Securities to be
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purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the Lead Managers pursuant to Section 5(h)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time and at each Date
of Delivery, counsel for the International Managers 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
Securities 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 and the Selling Shareholder in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the International
Managers.
(m) Termination of Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which
is after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company and the Selling Shareholder
at any time at or prior to the Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or
25
21
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate 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 6(d) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Managers or by the Selling Shareholder
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the International Prospectus (or any amendment
or supplement thereto) and provided further that the Company will not be liable
to any International Manager with respect to any preliminary prospectus to the
extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted solely from the fact that such
International Manager, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such International Manager
failed to send or give, at or prior to the Closing Date, a copy of the final
International Prospectus, as then amended or supplemented, if: (i) the Company
has previously furnished copies thereof (sufficiently in advance of the Closing
Date to allow for distribution by the Closing Date) to the International Manager
and the loss, liability, claim, damage or expense of such International Manager
resulted from an untrue statement or omission of a material fact contained in or
omitted from the preliminary prospectus which was corrected in the final
International Prospectus as, if applicable, amended or supplemented prior to the
Closing Date and such final International Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person; and
(ii) such failure to give or send
26
22
such final International Prospectus by the Closing Date to the party or parties
asserting such loss, liability, claim, damage or expense would have constituted
the sole defense to the claim asserted by such person.
The Selling Shareholder agrees to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, the Company, its directors, its officers who signed
the Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company to each International
Manager; provided, however, that such indemnification shall be only with respect
to the information furnished in writing to the Company by or on behalf of the
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), including Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or International
Prospectus (or any amendment or supplement thereto); and provided further that
the aggregate liability of the Selling Shareholder pursuant to this paragraph
shall be limited to the total net proceeds (before deducting expenses) received
by the Selling Shareholder from the Securities purchased by the Underwriters
from the Selling Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers 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 the
Selling Shareholder and each person, if any, who controls the Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of such International Manager through the Lead Managers expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary international prospectus or the International Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties
27
23
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim 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 any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. 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 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 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 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement (other than reimbursement for fees and expenses that the indemnifying
party is contesting in good faith).
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section 6 shall not affect any other agreement among the Company and the
Selling Shareholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, by the
Selling Shareholder and by the International Managers from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
28
24
provided by clause (i) 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, of the Selling Shareholder
and of the International Managers in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, by the Selling
Shareholder and by the International Managers in connection with the offering of
the International Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the International Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholder and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the International Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of the International Securities as set forth on such
cover.
The relative fault of the Company, of the Selling Shareholder and of
the International Managers shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, by the Selling Shareholder or by the International
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission and (ii) the Selling Shareholder shall not be required to contribute
any amount in excess of the
29
25
total net proceeds (before deducting expenses) received by the Selling
Shareholder from the Securities purchased from the Selling Shareholder.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager 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 such
International Manager, 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 or the Selling Shareholder 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 Company or the Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section 7 shall not affect any other agreement
between the Company and the Selling Shareholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholder submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company or the Selling Shareholder, and shall survive delivery of
the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate this Agreement,
by notice to the Company and the Selling Shareholder, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
International Prospectus, any 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, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the
30
26
judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, 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, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at the Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Lead Managers
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting International Managers, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Lead Managers shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such date,
the non-defaulting International Managers shall be obligated, each
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after
Closing Time, the obligation of the International Managers to purchase
and of the Company to sell the Option Securities to be purchased and
sold on such Date of Delivery, shall terminate without liability on the
part of any non-defaulting International Manager.
No action taken pursuant to this Section 10 shall relieve any
defaulting International Manager from liability in respect of its default.
31
27
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers or (ii) the Company and the Selling Shareholder shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectuses or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, attention of ;
notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and notices to the Selling
Shareholder shall be directed to ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers, the Company and the Selling
Shareholder and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholder 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. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Shareholder 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 Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
32
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the International
Managers, the Company and the Selling Shareholder in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ & CO.
By _____________________________________
Title:
MITSUKOSHI, LTD.
By _____________________________________
As Attorney-in-Fact acting on behalf
of the Selling Shareholder
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
ING BARINGS
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By _____________________________
Authorized Signatory
For itself and as Lead Managers of the other International Managers named in
Schedule A hereto.
33
Sch A - 1
SCHEDULE A
Number of
Initial
International
Name of International Managers Securities
------------------------------ -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International...............................
ING Barings...............................................
-------
Total..................................................... 776,000
=======
34
Sch B - 1
SCHEDULE B
▇▇▇▇▇▇▇ & Co.
776,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $_____.
2. The purchase price per share for the International
Securities to be paid by the several International Managers shall be
$_____, being an amount equal to the initial public offering price set
forth above less $___ per share; provided that the purchase price per
share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
35
Sch C - 1
SCHEDULE C
[List of subsidiaries]
36
A-1-1
Exhibit A-1
FORM OF OPINION OF THE COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in each
jurisdiction listed on Schedule 1 to the opinion, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the International Purchase Agreement and the U.S. Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses); the shares of issued and outstanding
capital stock of the Company, including the Securities to be purchased by the
Underwriters from the Selling Shareholder, have been duly authorized and validly
issued and are fully paid and non-assessable; and 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 arising under
applicable law, under the Company's charter or by-laws or under any agreement to
which the Company is a party.
(v) The sale of the Securities by the Selling Shareholder is not
subject to the preemptive or other similar rights of any securityholder of the
Company arising under applicable law, under the Company's charter or by-laws or
under any agreement to which the Company is a party.
(vi) Each Subsidiary has been duly incorporated 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 Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in each jurisdiction listed on Schedule 2 to the
opinion, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect;
37
A-1-2
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of my
knowledge, 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.
(vii) To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the
International Purchase Agreement and the U.S. Purchase Agreement or the
performance by the Company of its obligations thereunder.
(viii) To the best of my knowledge, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(ix) The execution, delivery and performance by the Company of the
International Purchase Agreement and the U.S. Purchase Agreement and the
consummation by the Company of the transactions contemplated in the
International Purchase Agreement, the U.S. Purchase Agreement and in the
Registration Statement and compliance by the Company with its obligations under
the International Purchase Agreement and the U.S. Purchase Agreement do not and
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xi) of the Purchase Agreements) 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, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company or any subsidiary 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 (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any Subsidiary, or
(except with respect to any Federal or state securities laws, as to which I
express no opinion) any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
38
A-1-3
the Company or any Subsidiary or any of their respective properties, assets or
operations, nor will such action cause the preferred share purchase rights
issued pursuant to the Rights Agreement, dated as of November 17, 1988, as
amended, between the Company and Chase Manhattan Bank, successor to
Manufacturers Hanover Trust Company, as Rights Agent, (the "Rights Agreement")
to become exercisable or cause any Underwriter to become an Acquiring Person (as
defined in the Rights Agreement).
(x) The documents incorporated by reference in the Prospectuses (other
than the financial statements and schedules and other financial data included
therein or omitted therefrom, as to which I express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
39
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; the Prospectuses have
been transmitted by a means reasonably calculated to result in filing with the
Commission within the time period required by Rule 424(b); and, to the best of
our knowledge, 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 threatened by the Commission.
(iii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectuses, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and schedules and other financial data included therein
or omitted therefrom, as to which we express no opinion) appeared on their face
to be appropriately responsive in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations.
(iv) The information in the Registration Statement under Item 15, to
the extent that it constitutes matters of law, summaries of legal matters, the
Company's charter and by-laws or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects.
(v) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectuses that are not described as
required.
(vi) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(vii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign,
40
A-2-2
(other than foreign and state securities laws, as to which we express no
opinion, and other than federal securities laws, as to which we express no
opinion in this paragraph) is necessary or required in connection with the due
authorization, execution and delivery of the International Purchase Agreement
and the U.S. Purchase Agreement or for the offering, issuance, sale or delivery
of the Securities.
Nothing has come to our attention that leads us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectuses or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectuses were issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
41
B-1
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under the International Purchase Agreement, the
U.S. Purchase Agreement or in the Power of Attorney and Custody Agreement, or in
connection with the offer, sale or delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly executed
and delivered by the Selling Shareholder and constitutes the legal, valid and
binding agreement of the Selling Shareholder.
(iii) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
the Selling Shareholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling
Shareholder to deliver the Securities on behalf of the Selling Shareholder in
accordance with the terms of the International Purchase Agreement and the U.S.
Purchase Agreement.
(v) The execution, delivery and performance of the International
Purchase Agreement, the U.S. Purchase Agreement and the Power of Attorney and
Custody Agreement and the sale and delivery of the Securities and the
consummation of the transactions contemplated in the International Purchase
Agreement, the U.S. Purchase Agreement and in the Registration Statement and
compliance by the Selling Shareholder with its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement 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
Securities or any property or assets of the Selling Shareholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which the Selling Shareholder
is a party or by which it may be bound, or to which any of the property or
assets of the Selling Shareholder is subject (except for such conflicts,
breaches or defaults, or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instruments of the
Selling Shareholder, or any law, administrative regulation, judgment or order of
any governmental agency or body or any administrative or court decree having
jurisdiction over the Selling Shareholder or any of its properties.
42
B-2
(vi) Upon delivery of the Securities to be sold by the Selling
Shareholder pursuant to the International Purchase Agreement and the U.S.
Purchase Agreement and payment therefor, assuming the Underwriters purchase
without notice of any adverse claim under the Uniform Commercial Code, good and
clear title will pass to the Underwriters, severally, free of all restrictions
on transfer, liens, encumbrances, security interests and claims whatsoever.