EXHIBIT 1.2
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
2,400,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: April , 2000
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
2,400,000 Shares of Common Stock
(Par Value $.002 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
April , 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Chase Manhattan International Limited
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bank of America International Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇ International Limited
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Packard BioScience Company, a Delaware corporation (the "COMPANY"), and the
persons listed in Schedule B hereto (the "SELLING SHAREHOLDERS") 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 ▇▇▇▇▇ Manhattan International Limited, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
Incorporated, Bank of America Limited, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ International Limited
are acting as representatives (in such capacity, the "LEAD MANAGERS"), with
respect to (i) the issue and sale by the Company and the purchase by the
International Managers, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $.002 per share, of the Company
("COMMON STOCK") set forth in said Schedule A, and (ii) the grant by the Company
and the Selling Shareholders 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 360,000 additional shares of Common Stock to cover over-allotments,
if any, of which up to 55,560 shares of Common Stock may be sold by the Selling
Shareholders.
The aforesaid 2,400,000 shares of Common Stock (the "INITIAL INTERNATIONAL
SECURITIES") to be purchased by the International Managers, all or any part of
the 360,000 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". The International Option
Securities are to be sold by the Company and the Selling Shareholders acting
severally and not jointly.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
PURCHASE AGREEMENT") providing for the offering by the Company of an aggregate
of 9,600,000 shares of Common Stock (the "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 Chase Securities Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, Banc
of America Securities LLC, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC are acting as
representatives (the "U.S. REPRESENTATIVES"), and the grant by the Company and
the Selling Shareholders to the U.S. Underwriters, acting severally and not
jointly, of an option to purchase all or any part of up to 1,440,000 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"), of which up to 222,240 shares of Common Stock may be sold by the
Selling Shareholders. The U.S. Option Securities are to be sold by the Company
and the Selling Shareholders acting severally and not jointly.
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, the "GLOBAL COORDINATOR").
The Company understands 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 and the Underwriters agree that up to 1,200,000 shares of the
Initial Securities to be purchased by the Underwriters (the "RESERVED
SECURITIES") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships
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with the Company, as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. and all other applicable laws, rules and regulations. To the
extent that such Reserved Securities are not orally confirmed for purchase by
such eligible employees and persons having business relationships with the
Company by the end of the first business day after the date of this Agreement,
such Reserved Securities may be offered by the Underwriters as part of the
offering contemplated hereby.
On March 21, 2000, the Company amended its certificate of incorporation to
change the authorized capital stock of the Company to consist of 200,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01
per share, of the Company (the "CHARTER AMENDMENT"), and to convert each
outstanding share of Common Stock into 5 shares of Common Stock (the "STOCK
SPLIT" and, together with the Charter Amendment, the "RECAPITALIZATION").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-31996) 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
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. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "FORM OF U.S. PROSPECTUS") and one relating to the International
Securities (the "FORM OF INTERNATIONAL PROSPECTUS"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption "UNDERWRITING."
The information included in any such prospectus 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". Each
Form of International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "PRELIMINARY
PROSPECTUS." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information 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 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." For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the International
Prospectus, the U.S. Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include
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the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
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 . 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 and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), 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 (including any prospectus wrapper), 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; and the
Prospectuses, any preliminary prospectuses and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their respective
times of issuance and at the Closing Time, complied and will comply in all
material respects with any applicable securities laws or regulations of
foreign jurisdictions in which the Prospectuses and such preliminary
prospectuses, as amended or supplemented, if applicable, are distributed in
connection with the offer and sale of Reserved Securities. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectuses or any amendments or supplements thereto (including any
prospectus wrapper) made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
the
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Lead Managers expressly for use in the Registration Statement or the
Prospectuses or any amendments or supplements thereto (including any
prospectus wrapper).
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(b), 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
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent otherwise permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedule and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as set forth in the notes
thereto). The supporting schedule 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 or in any amendment or
supplement thereto, (A) there has been no material adverse change in the
condition, financial or otherwise, results of operation, 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 has been no transaction entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which is material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of
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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 could not reasonably be expected to 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, (including with respect to the credit agreement
referred to in Exhibit 10.2 to the Registration Statement and the
amendments thereto (the "CREDIT AGREEMENT")), 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. All Subsidiaries of the Company are listed on Exhibit 21 to the
Registration Statement.
(vii) CAPITALIZATION. The Company had at the date indicated, a duly
issued, authorized and outstanding capitalization as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" and notes thereto. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the Initial Securities was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company; 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 with the exception of
the issuance by the Company of an aggregate of 26,500 authorized but
unissued shares of Common Stock (the "ISSUED SHARES") in three separate
issuances (the equivalent of 465,000 shares of the presently outstanding
Common Stock in the aggregate), in March 1987, March 1988 and March 1989
(collectively, the "STOCK ISSUANCES"); with respect to the Issued Shares,
to the Company's knowledge, the holders of then-outstanding Common Stock
did not seek to exercise, and neither such holders nor any successor,
transferee or purchaser for value of such Common Stock outstanding
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immediately prior to the Stock Issuances have, at any time since,
threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to
bring, any claim at law or in equity challenging the Stock Issuances; to
the Company's knowledge none of the Option Securities was issued in
violation of the preemptive or other similar rights of any securityholder
of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities to be
purchased by the International Managers and the U.S. Underwriters from the
Company have been duly authorized by the Company for issuance and sale to
the International Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, respectively, and,
when issued and delivered by the Company pursuant to this Agreement and the
U.S. Purchase Agreement, respectively, against payment to the Company of
the consideration set forth herein and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Stock conforms in all material respects to all statements relating
thereto contained in the Prospectuses and the description of the Common
Stock under the caption "Description of Capital Stock" summarizes in all
material respects the rights set forth in the instruments defining the
same; no holder of the Securities to be sold by the Company will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities by the Company is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "AGREEMENTS AND
INSTRUMENTS") except for such defaults that could not reasonably be
expected to result in a Material Adverse Effect; and the execution,
delivery and performance by the Company of this Agreement and the U.S.
Purchase Agreement and the consummation by it of the transactions
contemplated in this Agreement, the U.S. Purchase Agreement and in the
Registration Statement (including the issuance and sale by the Company of
the Securities and the use by it of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") 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, including (if required) board approval, 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
7
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, defaults, Repayment
Events, or liens, charges or encumbrances that could not reasonably be
expected to result in a Material Adverse Effect), nor will such action
result in any violation by the Company (A) of the provisions of the charter
or by-laws of the Company or any Subsidiary or (B) any existing 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 except, in the case of (B) for such
violations that could not reasonably be expected to result in a Material
Adverse Effect. 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.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
could reasonably be expected to result in a Material Adverse Effect.
(xii) 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 could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be expected
to materially and adversely affect the value of the properties or assets of
the Company, in the aggregate, or 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.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or documents
required pursuant to the 1933 Act to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which have
not been so described and filed as required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or believe they can acquire on reasonable
terms, adequate patents, patent
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rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or other intellectual property (collectively, "INTELLECTUAL PROPERTY")
necessary to carry on their business as presently conducted (except as the
failure to own, possess or acquire such Intellectual Property could not
reasonably be expected to have a Material Adverse Effect), and, except as
disclosed in the Prospectuses, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, except for such
infringements, conflicts, invalidities and inadequacies that could not
reasonably be expected to result in a Material Adverse Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities under this Agreement and the U.S. Purchase Agreement or the
consummation by it of the transactions contemplated by this Agreement and
the U.S. Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common Stock
or under state securities or blue sky laws or (except with respect to the
Reserved Securities) under foreign securities laws, (ii) such as have been
already obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered, (iii) which
shall have been obtained or made prior to Closing Time or, if applicable,
the Time of Delivery and (iv) such as have been already obtained or as may
be required under the laws and regulations of jurisdictions outside the
United States in which the Securities (other then the Reserved Securities)
are offered.
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess all material permits, licenses, approvals, consents
and other authorizations (collectively, "GOVERNMENTAL LICENSES") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business presently conducted by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply could not reasonably be expected to result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect could
not reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which could reasonably be expected to result in a
Material Adverse Effect.
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(xvii) TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all real and personal properties owned by them,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except, in each case, (a)
as described in the Prospectuses (including with respect to the Credit
Agreement) or (b) such as are neither material in amount nor material in
relation to the business presently conducted by the Company and its
subsidiaries, considered as one enterprise; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any subsidiary has any notice
of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, except for such claims
that could not reasonably be expected to result in a Material Adverse
Effect.
(xviii) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 ACT") and the rules and regulations of the
Commission thereunder.
(xix) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement or except as could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any existing federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) each of the
Company and its subsidiaries has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with
their requirements, (C) there are no pending or, to the knowledge of the
Company, threatened, administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its
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subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xx) REGISTRATION RIGHTS. Except as disclosed in the Prospectuses,
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement.
(xxi) YEAR 2000 PROBLEM. Neither the Company nor any of its
Subsidiaries has experienced any disruptions of its operations as a result
of Year 2000 issues, except as could not reasonably be expected to have a
Material Adverse Effect. The Company has no reason to believe, and does not
believe, that the Year 2000 issue will have a material adverse effect on
the general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results of
operations of the Company and its subsidiaries or result in any material
loss or interference with the Company's business or operations.
(xxii) INSURANCE. The Company and its subsidiaries carry or are
entitled to the benefits of insurance, with financially sound and reputable
insurers, in such amounts and covering such risks as is generally
maintained by companies of established repute engaged in the same or
similar business, and all such insurance is in full force and effect.
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS. No
relationship, direct or indirect, exists between or among any of the
Company or any affiliate of the Company, on the one hand, and any director,
officer or stockholder of any of them, on the other hand, which is required
by the 1933 Act or by the 1933 Act Regulations to be described in the
Registration Statement or the Prospectuses which is not so described or is
not described as required.
(xxiv) COMPLIANCE WITH CUBA ACT. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder,
or is exempt therefrom.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder severally and not jointly represents and warrants to each
International Manager as of the date hereof, as of the Closing Time, and, if
such Selling Shareholder is selling Option Securities on a Date of Delivery, as
of such Date of Delivery, and agrees with each International Manager, as
follows:
11
(i) ACCURATE DISCLOSURE. To the actual knowledge of each Selling
Shareholder, the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; such Selling Shareholder has
reviewed and is familiar with the Registration Statement and the
Prospectuses and to such Selling Shareholder's actual knowledge neither the
Prospectuses nor any amendments or supplements thereto (including any
prospectus wrapper) contains any untrue statement of a material fact or
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; such Selling Shareholder is not prompted to sell the Securities
to be sold by such 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. Such Selling Shareholder has the
full right, power and authority to enter into this Agreement and an
Irrevocable Power of Attorney and Custody Agreement (the "IRREVOCABLE POWER
OF ATTORNEY AND CUSTODY AGREEMENT") and to sell, transfer and deliver the
Securities to be sold by such Selling Shareholder hereunder. The execution
and delivery of this Agreement and the Irrevocable Power of Attorney and
Custody Agreement and the sale and delivery of the Securities to be sold by
such Selling Shareholder and the consummation by him of the transactions
contemplated herein and compliance by such Selling Shareholder with its
obligations hereunder 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 such
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 such Selling Shareholder is a party or by which such
Selling Shareholder may be bound.
(iii) RIGHT TO TRANSFER SECURITIES. The Securities to be sold by such
Selling Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement are certificated securities in registered form and are not held
in any securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in the State
of New York (the "NYUCC"). Such Selling Shareholder has, and, at the
Closing Time and, if any Option Securities are purchased, on the Date of
Delivery, will have, full right, power and authority to hold, sell,
transfer and deliver the Securities to be sold by such Selling Shareholder
pursuant to this Agreement and the International Purchase Agreement; and
upon the Underwriters' acquiring possession of such Securities and paying
the purchase price therefor as herein contemplated, the Underwriters will
acquire their respective interests in such Securities (including, without
limitation, all rights that such Selling Shareholder had or has the power
to transfer in such Securities) free of any "adverse claim" assuming that
each Underwriter does not have "notice" of any "adverse claim" to such
Securities (as such terms are defined in Sections 8-102 and 8-105 of the
NYUCC as currently in effect). Certificates for all of the Option
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank, with signatures
guaranteed, have been placed in custody with the custodian under the
Irrevocable Power of Attorney and Custody Agreement with irrevocable
conditional instructions to deliver such Option Securities to the
Underwriters pursuant to this Agreement.
12
(iv) DUE EXECUTION OF THE IRREVOCABLE POWER OF ATTORNEY AND CUSTODY
AGREEMENT. Such Selling Shareholder has duly executed and delivered, in the
form heretofore furnished to the Lead Managers, the Irrevocable Power of
Attorney and Custody Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, or either of them, as attorneys-in-fact (the "ATTORNEYS-IN-FACT")
and the Company, as custodian (the "CUSTODIAN"); the Custodian is
authorized to deliver the Securities to be sold by such Selling Shareholder
hereunder and to accept payment therefor; and each Attorney-in-Fact is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 5(g) or that may be required pursuant to Sections
5(p) and 5(q) on behalf of such Selling Shareholder, to sell, assign and
transfer to the International Managers the Securities to be sold by such
Selling Shareholder hereunder, to determine the purchase price to be paid
by the International Managers to such Selling Shareholder, as provided in
Section 2(b) hereof, to authorize the delivery of the Securities to be sold
by such Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection with
this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the 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 such Selling Shareholder of
its obligations hereunder or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the sale and delivery of the
Securities hereunder by such Selling Shareholder or the consummation by
such Selling Shareholders of the transactions contemplated by this
Agreement, except (i) such as may have previously been made or obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common Stock,
or under state securities or blue sky laws or (except with respect to the
Reserved Securities) under foreign securities laws, (ii) such as have been
already obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered, (iii) which
shall have been obtained or made prior to Closing Time or, if applicable,
the Time of Delivery, and (iv) such as have been already obtained or as may
be required under the laws and regulations of jurisdictions outside the
United States in which the Securities (other than the Reserved Securities)
are offered.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, such Selling Shareholder will be subject
to the restrictions set forth in EXHIBIT E hereto and such Selling
Shareholder agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of
such Selling Shareholder's securities except in compliance with such
restrictions.
13
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all of the
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with irrevocable
conditional instructions to deliver such Securities to the International
Mangers pursuant to this Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Stockholder 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 Shareholders as such and delivered to the Lead Managers or to counsel
for International Managers pursuant to the terms of this Agreement shall be
deemed a representation and warranty by such Selling Shareholder to the
International Managers 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
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule C, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial 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 Company and the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the International Managers, severally and not
jointly, to purchase up to an additional 360,000 shares of Common Stock, as set
forth in Schedule B at the price per share set forth in Schedule C. 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
14
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company and the Selling Shareholders
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 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, 599 Lexington Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, 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 business days after such date as shall be agreed upon by the
Global Coordinator and the Company (such time and date of payment and delivery
being herein called "CLOSING TIME").
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 and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to a bank account designated by the
Company and the Custodian pursuant to each Selling Shareholder's Irrevocable
Power of Attorney and Custody Agreement, as the case may be, against delivery
through the facilities of The Depository Trust Company 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
or the International Option Securities, if any, to be purchased by any
International Manager whose funds
15
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.
(c) DENOMINATIONS; REGISTRATION. Certificates for the Initial International
Securities and the International Option Securities, if any, 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 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
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 effect the filings necessary
pursuant to and in compliance 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)), 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, 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 and counsel for the International Managers shall
reasonably object.
16
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will, if so requested furnish 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) and signed copies of all consents and
certificates of experts, and will, if so requested, also furnish to the
Lead Managers, without charge, one 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 other
International Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent otherwise 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 Securities Exchange Act
of 1934 (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 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 otherwise permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
in all material respects with the 1933 Act and the 1933 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, upon becoming aware of such event,
condition or circumstance, 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
17
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 (domestic or foreign) 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 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) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, 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) the Securities, including the Reserved Securities,
18
to be sold hereunder or under the U.S. Purchase Agreement, (B) any shares
of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectuses, (C) 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 Prospectuses or (D) any
shares of Common Stock issued pursuant to any non-employee director stock
plan or dividend reinvestment plan.
(k) 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 rules and regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of this Agreement. The Underwriters will
notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer agent
to place a stop transfer restriction upon such securities for such period
of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
(m) COMPLIANCE WITH RULE 463. The Company will include in its periodic
reports filed with the Commission pursuant to the 1934 Act such information
as may be required pursuant to Rule 463 of the 1933 Act Regulation.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay all
expenses incident to the performance of its and the Selling Shareholders'
obligations (except as set forth in Section 4(b)) under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities
19
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, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities (x) the fees and expenses
incurred in connection with the inclusion of the Securities in the Nasdaq
National Market and (xi) all costs and expenses of the Underwriters, including
reasonable fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities.
(b) EXPENSES OF THE SELLING SHAREHOLDERS. The Selling Shareholders, jointly
and severally, will pay all expenses related to (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the Securities
to the International Managers, and their transfer between the International
Managers pursuant to an agreement between such International Managers, and (ii)
the fees and disbursements of their respective counsel if other than Day, ▇▇▇▇▇
& ▇▇▇▇▇▇ LLP,. and accountants if other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company shall reimburse the International Managers for
all of their out-of-pocket expenses, including reasonable fees and disbursements
of counsel for the International Managers.
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
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholders 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, shall have
become effective and at 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. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective
20
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) OPINION OF COUNSEL FOR THE COMPANY. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing
Time, of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, together
with the favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., general counsel of the
Company, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced copies of such
letters for each of the other International Managers to the effect set
forth in Exhibits A and B hereto, respectively, and to such further effect
as counsel to the International Managers may reasonably request.
(c) OPINION OF PATENT COUNSEL FOR THE COMPANY. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Jenkens & ▇▇▇▇▇▇▇▇▇, patent counsel for the Company, in
form and substance satisfactory to counsel for the International Mangers,
together with signed or reproduced copies of such letter for each of the
other International Managers to the effect set forth in Exhibit C hereto
and to such further effect as counsel to the International Managers may
reasonably request.
(d) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other International Managers, to the effect set forth in
Exhibit D hereto and to such further effect as counsel to the International
Managers may reasonably request.
(e) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated as
of 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 (i), (ii), (iii), (iv) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (viii) through (vii), inclusive, (viii), (ix) (solely as to the
information in the Prospectus under "Description of Capital Stock--Common
Stock" and "Material United States Federal Tax Considerations for Non-U.S.
Holders") and the penultimate paragraph of Exhibit A 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 and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Lead Managers.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem
21
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(f) OFFICERS' CERTIFICATE. At 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 results of operations, 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 CHANGE"), and the Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of
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 Closing Time, (iii) the Company has complied
with all agreements and has satisfied all conditions on its part to be
performed or satisfied under this Agreement at or prior to 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 are pending, to the best of their knowledge or are
contemplated by the Commission.
(g) CERTIFICATE OF SELLING SHAREHOLDERS. At Closing Time, the Lead
Managers shall have received a certificate of an Attorney-in-Fact on behalf
of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each 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 Closing
Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and has satisfied all conditions on its part
to be performed or satisfied under this Agreement at or prior to Closing
Time.
(h) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the Lead Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter dated such date, in form and substance satisfactory to the Lead
Managers, 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.
(i) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (i) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
22
(j) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(k) AMENDED CHARTER DOCUMENTS. The certificate of incorporation and
by-laws of the Company have been amended as required by the
Recapitalization, and the Recapitalization has been duly authorized and
consummated by the Company.
(l) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) LOCK-UP AGREEMENTS. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit E hereto signed by the persons listed on Schedule D hereto.
(n) DOWNGRADE OF COMPANY'S SECURITIES. Between the date of this
Agreement and the Closing Time or any applicable Date of Delivery (if any),
there shall not have occurred any downgrading, nor shall any notice have
been given to the Company of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
or in the rating outlook for the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(o) PURCHASE OF INITIAL U.S. SECURITIES. Contemporaneously with the
purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have purchased
the Initial U.S. Securities under the U.S. Purchase Agreement.
(p) 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 Shareholders contained herein and the statements in any
certificates furnished by the Company or on behalf of any Selling
Shareholder hereunder shall be true and correct (to the extent set forth
herein) 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 President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(f) hereof remains true and correct (to the extent set forth
therein) as of such Date of Delivery.
23
(ii) CERTIFICATE OF SELLING SHAREHOLDERS. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(g) hereof remains true and correct
(to the extent set forth therein) as of such Date of Delivery.
(iii) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion
of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, together
with the favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., general counsel
of the Company, each 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 opinion required by
Section 5(b) hereof.
(iv) OPINION OF PATENT COUNSEL FOR THE COMPANY. The favorable
opinion of Jenkens & ▇▇▇▇▇▇▇▇▇, patent counsel for the Company, in
form and substance satisfactory to counsel for International Managers,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery, and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. The
favorable opinion of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery, and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) OPINION OF COUNSEL FOR THE 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 purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(vii) BRING-DOWN COMFORT LETTER. A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP in form and substance satisfactory to the Lead Managers 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(i)
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.
24
(q) ADDITIONAL DOCUMENTS. At 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
Shareholders in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to the Lead Managers and counsel for the International Managers.
(r) 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 the Lead
Managers by notice to the Company at any time at or prior to 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 and the
Management Selling Shareholders who are listed as such in SCHEDULE B hereto (the
"MANAGEMENT SELLING SHAREHOLDERS") agree to jointly and severally 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 in the manner set forth in clauses (i), (ii), (iii),
(iv) and (v) of this Section 6(a); PROVIDED, HOWEVER, that none of the
Management Selling Shareholders shall be liable for the payment of an amount,
pursuant to this Section 6, which exceeds the net proceeds received by such
Management Selling Shareholder from the sale of Option Securities sold by such
Management Selling Shareholder pursuant to this Agreement. In addition, the
Non-Management Selling Shareholders who are listed as such in SCHEDULE B hereto
(the "NON-MANAGEMENT SELLING SHAREHOLDERS") agree to severally and not jointly
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 in the manner set forth in clauses (i),
(ii), (iii) and (iv) of this Section 6(a); PROVIDED, HOWEVER, that none of the
Non-Management Selling Shareholders shall be liable for the payment of an
amount, pursuant to this Section 6, which exceeds the net proceeds received by
such Non-Management Selling Shareholder from the sale of Option Securities sold
by such Non-Management Selling Shareholder pursuant to this Agreement.
25
(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, or the
omission or 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 any prospectus wrapper) 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, arising out of (A) the violation of any applicable
securities laws or regulations of foreign jurisdictions where Reserved
Securities have been offered and (B) any untrue statement or alleged untrue
statement of a material fact included in the supplement or prospectus
wrapper material distributed in foreign jurisdictions in connection with
the sale of the Reserved Securities or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) 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 or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders, as applicable;
(iv) 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 or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i),(ii) or (iii) above; and
(v) 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 claim whatsoever based upon any claim asserted alleging violation of
preemptive rights;
26
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) 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 expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information, or any preliminary prospectus or the
Prospectuses or any amendment or supplement thereto (or any prospectus wrapper)
and (b) with respect to any preliminary prospectus to the extent that any such
loss, liability, claim, damage or expense of such International Manager results
solely from the fact that such International Manager sold Securities to a person
as to whom the Company shall establish that there was not sent by commercially
reasonable means, at or prior to the written confirmation of such sale, a copy
of the International Prospectus in any case where such delivery is required by
the 1933 Act, if the Company has previously furnished copies thereof in
sufficient quantity to such International Manager (in compliance with Section
3(d) hereof) and the loss, liability, claim, damage or expense of such U.S.
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus that was corrected in the International
Prospectus; and PROVIDED FURTHER that the liability of each Selling Shareholder
under this indemnity agreement (i) shall apply only to losses, liability,
claims, damages or expenses 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 provided by such Selling Shareholder to the
Company expressly for use in the Registration Statement or any amendment thereto
(or any prospectus wrapper), including the Rule 430A Information or any
preliminary prospectus or the International Prospectus or any amendment or
supplement thereto (for any prospectus wrapper) and (ii) shall not exceed the
net proceeds received by such Selling Shareholder.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND THE SELLING
SHAREHOLDERS. 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
each Selling Shareholder, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsections (a)(i) through (iv)
(except that reference in (a)(iv) to ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be to the Company and
the Selling Shareholders, as the case may be), of this Section 6, 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 or any preliminary international
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through the Lead Managers expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
27
(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 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 (which consent
shall not be unreasonably withheld), 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 with respect to such fees and
expenses as contemplated by Section 6(a)(iii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) INDEMNIFICATION FOR RESERVED SECURITIES. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the International Managers from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees and persons having
business relationships with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
28
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section 6 shall not affect any agreement or arrangement among the Company
and the Selling Shareholders with respect to indemnification, including without
limitation as set forth in Section 12 of the Irrevocable Power of Attorney and
Custody Agreement.
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 and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation 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 and
the Selling Shareholders on the one hand and of the International Managers on
the other hand in connection with the statements or omissions, or in connection
with any violation of the nature referred to in Section 6(a)(ii)(A) hereof,
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 and the Selling Shareholders
on the one hand and the International Managers on the other hand 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
Shareholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the International Managers on the other hand 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 or the Selling Shareholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or any violation of the nature referred to in Section 6(a)(ii)(A)
hereof.
The Company, the Selling Shareholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
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
29
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, 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.
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 any 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 such Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 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 Company's and the Management Selling Shareholder's respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule B hereto. The Non-Management Selling Shareholder's respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule B hereto and not joint.
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 the Selling Shareholders 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
Shareholders, and shall survive delivery of the Securities to the International
Managers.
30
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers may terminate this Agreement,
by notice to the Company and the Selling Shareholders, at any time at or prior
to 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, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, 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 reasonable judgment of the Lead Managers, 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 Nasdaq National Market, 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,
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.
Notwithstanding any other provision of this Agreement to the contrary, no
Selling Shareholder shall have any liability under this Agreement, and this
Agreement shall terminate and have no force and effect with respect to the
Selling Shareholders, if no Option Securities are sold hereunder.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If one or
more of the International Managers shall fail at 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
31
(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 shall relieve any defaulting
International Manager from liability in respect of its default.
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 and the Selling Shareholders
to sell the relevant International Option Securities, as the case may be, either
the Lead Managers or the Company and the Selling Shareholders shall have the
right to postpone 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.
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR THE
COMPANY.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Option Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders or the Company do not exercise the right hereby
granted to increase, pro rata or otherwise, the number of Securities to be sold
by them hereunder to the total number to be sold by all Selling Shareholders as
set forth in Schedule B hereto, then the International Managers may, at the
option of the Lead Managers, by notice from the Lead Managers to the Company and
the non-defaulting Selling Shareholders, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section shall relieve any Selling Shareholder so defaulting from liability in
respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section, each of the Lead Managers, the Company and the non-defaulting Selling
Shareholders shall have the right to postpone Closing Time or the relevant Date
of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectuses or in any other
documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate
32
without any liability on the part of any non-defaulting party; PROVIDED,
HOWEVER, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full
force and effect. No action taken pursuant to this Section shall relieve the
Company from liability in respect of such default.
SECTION 12. 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, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇; and notices to the Company
shall be directed to it at Packard BioScience Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Chief Financial Officer and General
Counsel; and notices to the Selling Shareholders shall be directed to Day, ▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the International Managers, the Company and the Selling
Shareholders 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
Shareholders 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
Shareholders 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 14. 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 15. 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.
33
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
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement between the International
Managers, the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
PACKARD BIOSCIENCE COMPANY
By:___________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Chief Financial
Officer
THE SELLING SHAREHOLDERS
By:____________________________________
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
CHASE MANHATTAN INTERNATIONAL LIMITED
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
BANK OF AMERICA INTERNATIONAL LIMITED
▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: ___________________________________
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto
34
SCHEDULE A
NUMBER OF
INITIAL
INTERNATIONAL
NAME OF INTERNATIONAL MANAGER SECURITIES
----------------------------- -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..........................
Chase Manhattan International Limited................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated...................
Bank of America International Limited................
▇▇▇▇▇▇ ▇▇▇▇▇▇ International Limited..................
__________
Total................................................ 2,400,000
==========
Sch A-1
SCHEDULE B
MAXIMUM NUMBER
MAXIMUM NUMBER OF INTERNATIONAL
OF INTERNATIONAL OPTION
SECURITIES SECURITIES(1)
------------------ ----------------
Packard BioScience Company.............. 2,400,000 304,440
----------- ----------
Management Selling Shareholders: 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇....................... 0 15,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇................... 0 15,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇........................ 0 7,000
Non-Management Selling Shareholders: 0
▇▇▇▇▇ ▇▇▇▇▇........................... 0 7,880
Staf van Cauter....................... 0 2,940
▇▇▇▇▇▇ ▇▇▇▇▇.......................... 0 2,640
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇.................. 0 2,880
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.................... 0 2,220
----------- ----------
Selling Shareholders (total) 0 55,560
----------- ----------
Total................................... 2,400,000 360,000
=========== ==========
______________________
(1) If the option is exercised as to less than the maximum number of
International Option Securities, then the offer to sell by the Company and the
Selling Shareholders shall be that proportion of the total number of
International Option Securities then being offered which the number of
International Option Securities set forth above opposite the Company and each of
the Selling Shareholders bears to the total number of International Option
Securities offered.
Sch B-1
SCHEDULE C
PACKARD BIOSCIENCE COMPANY
2,400,000 Shares of Common Stock
(Par Value $.002 Per Share)
1. The initial public offering price per share for the Securities 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.
Sch C-1
SCHEDULE D
List of persons and entities
subject to lock-up(2)
----------------
(2) The lock-up by these persons and entities covers at least 85% of the issued
and outstanding shares of Common Stock of the Company, giving effect to the
exercise of outstanding options to purchase shares of Common Stock of the
Company.
Sch D-1
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ D.
------------------------------------------ -------------------------
▇▇▇▇▇ Capital Partners
II Limited Partnership
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ J.
------------------------------------------ -------------------------
BCP II Affiliates Fund
Limited Partnership
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ W.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇ H.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ W.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ III ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ Jr. ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ J.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Z.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ F.
------------------------------------------ -------------------------
Darken Jr ▇▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇ M.
------------------------------------------ -------------------------
DeBaerdemaeker Luc
------------------------------------------ -------------------------
Della ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
East ▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇ II ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
Elands ▇▇▇▇
------------------------------------------ -------------------------
Elsishans Jr. ▇▇▇▇ ▇.
------------------------------------------ -------------------------
Sch D-2
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
End ▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ F.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ G.
------------------------------------------ -------------------------
Frei ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ S.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇ L.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇ W.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ J.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ J.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇ E.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ K.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ P.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇ D.
------------------------------------------ -------------------------
Koskelo Markku
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇ E.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ C.
------------------------------------------ -------------------------
Le ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇ ▇▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇ ▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
Magny France
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ D.
------------------------------------------ -------------------------
Sch D-3
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ B.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ T.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ Virginia
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ Family Trust
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ KECALP Int'l
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ KECALP LP 1994
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ KECALP LP 1997
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
Mylymuk ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
Nacht ▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ W.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ S.
------------------------------------------ -------------------------
▇▇▇▇▇▇ Jr. ▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
Papen Roeland
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ D.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ C.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
Sch D-4
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ C.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ R.
------------------------------------------ -------------------------
Schmeizl ▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ J.
------------------------------------------ -------------------------
▇▇▇▇▇ Jr ▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
Serralunga Michel
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ L.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ P.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇ H.
------------------------------------------ -------------------------
▇▇▇▇ Trading Co. Inc.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ C.
------------------------------------------ -------------------------
Special ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
Stonington Capital Appreciation 1994 Fund
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ E.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇ K.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇ P.
------------------------------------------ -------------------------
Toritzin ▇▇▇▇
------------------------------------------ -------------------------
Toyo Corporation
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ E.
------------------------------------------ -------------------------
Van Cauter Staf C.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ F.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇▇▇ G.
------------------------------------------ -------------------------
▇▇▇▇ ▇▇▇▇
------------------------------------------ -------------------------
Wherlock ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
------------------------------------------ -------------------------
White Jr. ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
Sch D-5
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
White Sr. ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
White, TRUST ▇▇▇▇▇▇▇
------------------------------------------ -------------------------
White, TRUST ▇▇▇▇▇▇▇ ▇.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ C.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇ ▇▇▇▇▇ M.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ R.
------------------------------------------ -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A.
------------------------------------------ -------------------------
Sch D-6
EXHIBIT A
FORM OF OPINION OF WACHTELL, LIPTON, ▇▇▇▇▇ & ▇▇▇▇
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 U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
will be subject to personal liability by reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive or, to
the knowledge of such counsel, other similar rights, of any securityholder of
the Company.
(v) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectuses pursuant to Rule 424(b) has been made in the manner and
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.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of their
respective effective or issue dates (except, in each case, for the financial
statements, related notes and schedules and other financial data included
therein or
A-1
omitted therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(viii) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company.
(ix) The information in the Prospectuses under "Related Party
Transactions--Stockholders' Agreement," "Description of Capital Stock--Common
Stock", and "Material United States Federal Tax Considerations for Non-U.S.
Holders", to the extent that it purports to summarize legal matters or the
Company's charter and by-laws fairly summarizes the legal matters described
therein in all material respects.
(x) The Recapitalization has been duly authorized and validly consummated
by the Company.
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company," within the meaning of the 1940 Act and the rules and
regulations of the Commission thereunder.
With respect to the matters covered in paragraph (vii) above, our opinion
is based on participation in the preparation of the Registration Statement and
Prospectuses and any amendment or supplement thereto, and in discussions with
officers and other representatives of the Company and its independent public
accountants (including discussions in which representatives of the Underwriters
and their counsel participated) but is without independent check or
verification. We have participated in the preparation of the Registration
Statement and Prospectuses and in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and with representatives of the Underwriters and
their counsel at which the contents of the Registration Statement, the
Prospectuses and related matters were discussed. In connection with the opinions
expressed herein and the participation referenced above, we have not verified
and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses (other than as set forth in paragraph (ix) above).
We confirm, however, that in the course of such participation, review and
discussions, no facts have come to our attention to lead us to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for the financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which we express no opinion), at the time the 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 (B) that the Prospectuses or any
amendment or supplement thereto (except for the financial statements and related
notes and schedule, and other financial data included therein or omitted
therefrom, as to which we express no opinion), 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 include an untrue statement or a material fact or
omitted or 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.
A-2
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).
A-3
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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 U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company 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 could not reasonably be expected to result in a Material
Adverse Effect.
(iv) The Company had at the date indicated a duly authorized, issued and
outstanding capitalization as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" and notes thereto; the
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other similar
rights of any securityholder of the Company; 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 with the exception of the
issuance by the Company of an aggregate of 26,500 authorized but unissued shares
of Common Stock (the "ISSUED SHARES") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock in the
aggregate), in March 1987, March 1988 and March 1989 (collectively, the "STOCK
ISSUANCES"); with respect to the Issued Shares, to the Company's knowledge, the
holders of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of such Common
Stock outstanding immediately prior to the Stock Issuances have, at any time
since, threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to bring,
any claim at law or in equity challenging the Stock Issuances; and to my actual
knowledge, none of the Option Securities was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the
B-1
U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
is or will be subject to personal liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the preemptive rights
of any securityholder of the Company or other similar rights pursuant to
agreements or instruments to which the Company is a party.
(vii) 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 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 could not
reasonably be expected to result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement (including with respect to the
Credit Agreement), 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 (a) Packard Instrument Company or CCS Packard, Inc.
was issued in violation of the preemptive rights of any securityholder of such
Subsidiary or other similar rights pursuant to agreements or instruments to
which such Subsidiary is a party and (b) any Subsidiary (other than Packard
Instrument Company and CCS Packard, Inc.) was issued, after such entity
became a Subsidiary of the Company, in violation of the preemptive rights
of any securityholder of such Subsidiary or other similar rights pursuant
to agreements or instruments to which such Subsidiary is a party.
(viii) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by the Company.
(ix) To the best of my 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.
(x) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements and with any
applicable requirements of the charter and by-laws of the Company.
(xi) 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 is required to be disclosed in the Registration
Statement (other than as disclosed therein), which (a) could reasonably be
expected to result in a Material Adverse Effect, or (b) could reasonably be
expected to materially and adversely affect the value of the properties or
assets of the Company, in the aggregate, or the consummation of the transactions
contemplated in the U.S. Purchase Agreement and International Purchase Agreement
or the performance by the Company of its obligations thereunder.
B-2
(xii) The information in the Prospectuses under "Related Party
Transactions," "Description of Capital Stock", "Description of Indebtedness,"
"Business--Properties","Business--Legal Proceedings", "Risk Factors--Changes in
environmental regulations could increase the costs of manufacturing our products
or providing our services, or otherwise adversely affect the demand for our
products or services," "Business--Environmental Matters", and
"Business--Regulation" and in the Registration Statement under Items 14 and 15,
to the extent that it purports to summarize legal matters, the Company's charter
and by-laws or legal proceedings fairly summarizes the legal matters described
therein.
(xiii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectuses that are not described as
required.
(xiv) 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 my knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required pursuant to the 1933 Act to be described or referred to in the
Prospectuses or filed as exhibits to the Registration Statement, which have not
been so described or filed.
(xv) 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.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement and the International Purchase Agreement or the
consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder, with respect to the Common Stock or under foreign
or state securities or blue sky laws, (ii) such as have been already obtained or
as may be required under the laws and regulations of jurisdictions outside the
United States in which the Securities and the Reserved Securities are offered
and (iii) which shall have been obtained or made prior to the Closing Time or,
if applicable, the Time of Delivery.
(xvii) The execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase Agreement and in the
Registration Statement (with respect to the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "USE OF PROCEEDS") and compliance by the Company
with its obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action, including
(if required) board approval, and do not and will not,
B-3
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, any contract indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them is
bound (collectively, "THE AGREEMENT AND INSTRUMENTS") (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that could not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of (A) the
provisions of the charter or by-laws of the Company or any Subsidiary, (B) any
existing applicable domestic law, statute, rule, regulation, judgment, order,
writ or decree of any domestic government, government instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations, except, in the case of (B), for such violations that
could not reasonably be expected to result in a Material Adverse Effect or (C)
to the best of my knowledge, any existing applicable foreign law, statute, rule,
regulation, judgment, order, writ or decree of any foreign government,
government instrumentality or court having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations, except for such
violations that could not reasonably be expected to result in a Material Adverse
Effect.
(xviii) To the best of my knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement.
(xix) The Recapitalization has been duly authorized and validly consummated
by the Company.
Nothing has come to my attention that would lead me to believe (A) that the
Registration Statement (including the Rule 430A Information) or any amendment
thereto (except for financial statements and related notes and schedule, and
other financial data included therein or omitted therefrom, as to which I
express no opinion), 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 (B) that the Prospectuses or any
amendment or supplement thereto (except for financial statements, related notes
and schedule, and other financial data included therein or omitted therefrom, as
to which I express no opinion), 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 (including with respect
to the Stock Issuances) and, in the case of the opinion set forth in clause
(iv), on the books and records of the Company. 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).
B-4
EXHIBIT C
FORM OF OPINION OF JENKENS & ▇▇▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The statements and descriptions made in the Prospectuses under the
captions "Risk Factors--If we are unable to effectively protect our intellectual
property, we may be unable to prevent third parties from using our technology,
which could impair our ability to compete effectively in the market," "Risk
Factors--Our products could infringe on the intellectual property rights of
others, causing costly litigation and seriously harming our business" and
"Business--Intellectual Property" to the extent that they constitute matters of
law or legal conclusions, have been reviewed by us and fairly present the
information disclosed therein in all material respects and nothing has come to
our attention which leads us to believe that (A) the information set forth in
the Registration Statement, or any amendment thereto, under the captions
referred to above as of the time the Registration Statement became effective
under the Securities Act, and as of the Closing Time or any Delivery Date,
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 and (B) the information set forth in the Prospectuses, or in any
supplement thereto, under the captions referred to above as of their issue dates
and as of such Closing Time or any Delivery Date, contained an untrue statement
of a material fact or omitted to state a material fact, necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) Such counsel has no knowledge of any pending or threatened legal or
governmental proceeding relating to patents or proprietary know-how owned or
used by the Company or any of its subsidiaries, to which the Company or any of
its subsidiaries is a party, except as disclosed in the Registration Statement,
which, if adversely decided, would have a material adverse effect on the
business, financial condition or results of operations of the Company or any of
its subsidiaries, taken as a whole.
(iii) Such counsel has no knowledge of any infringement or alleged
infringement by the Company or any of its subsidiaries of issued patent rights
of others, except as disclosed in the Registration Statement, which would have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
C-1
EXHIBIT D
FORM OF OPINION OF DAY, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO SECTION 5(e)
(i) No filing with, or consent, approval, authorization, license, 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 or foreign
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by each
Selling Shareholder of its obligations under the U.S. Purchase Agreement and
International Purchase Agreement or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the offer, sale or delivery of the
Option Securities to be sold by the Selling Shareholders.
(ii) Each Irrevocable Power of Attorney and Custody Agreement has been duly
executed and delivered by the respective Selling Shareholder named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder.
(iii) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by or on behalf of each
Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Option Securities to be sold by the Selling
Shareholders on behalf of the Selling Shareholders in accordance with the terms
of the U.S. Purchase Agreement and the International Purchase Agreement.
(v) The execution, delivery and performance by the Selling Shareholders of
the U.S. Purchase Agreement, the International Purchase Agreement, the
Irrevocable Power of Attorney and Custody Agreement and the sale and delivery by
the Selling Shareholders of the Option Securities to be sold by the Selling
Shareholders and the consummation of the transactions by the Selling
Shareholders contemplated in the U.S. Purchase Agreement, in the International
Purchase Agreement, and in the Registration Statement and compliance by the
Selling Shareholders with their obligations under the U.S. Purchase Agreement
and International Purchase Agreement have been duly authorized by all necessary
action on the part of the Selling Shareholders and (A) 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 Option
Securities to be sold by the Selling Shareholders or any property or assets of
the Selling Shareholders pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which any Selling Shareholder is a party or by which it may be
bound, or to which any of the property or assets of any Selling Shareholder may
be subject, nor (B) will
D-1
such action result in any violation of any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) Each Selling Shareholder has full right, power and authority to sell,
transfer and deliver such Option Securities pursuant to the Purchase Agreements.
Assuming that (i) the certificate or certificates representing the Option
Securities to be sold by such Selling Shareholder pursuant to the Purchase
Agreements have been effectively indorsed in blank in accordance with NYUCC
Article 8 and (ii) the Underwriters are without notice of any adverse claim
to the Option Securities, then, upon the Underwriters' acquiring possession of
such certificate or certificates for the Option Securities and paying the
purchase price therefor pursuant to the Purchase Agreements, each Underwriter
will be a "protected purchaser" of the Option Securities to be purchased by it
(within the meaning of Section 8-303 of the NYUCC) and will acquire its
interest in such Option Securities (including, without limitation, all rights
that such Selling Shareholder had or has the power to transfer in such
Securities) free of any adverse claim.
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
the Selling Shareholders and of responsible officers of the Company and public
officials. Such counsel may also rely on opinions of other counsel, to the
extent they deem proper, as to matters governed by the laws of a jurisdiction in
which such counsel are not admitted to practice law.
D-2
EXHIBIT E
April , 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
Chase Securities Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Banc of America Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Chase Manhattan International Limited
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bank of America International Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇ International Limited
as Lead Manager of the several International Managers
to be named in the within-mentioned International Purchase Agreement
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY PACKARD BIOSCIENCE COMPANY
------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Packard
BioScience Company, a Delaware corporation (the "COMPANY"), understands that
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated,
Banc of America Securities LLC, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC (the "U.S.
UNDERWRITERS") propose to enter into a U.S. Purchase Agreement (the
E-1
"U.S. PURCHASE AGREEMENT") with the Company and the persons listed in Schedule B
to the U.S. Purchase Agreement (the "SELLING SHAREHOLDERS") providing for the
public offering of shares (the "SECURITIES") of the Company's common stock, par
value $.002 per share (the "COMMON STOCK"). The undersigned also understands
that the Company and the Selling Shareholders propose to concurrently enter into
an agreement with certain international underwriters (the "INTERNATIONAL
MANAGERS" and, together with the U.S. Underwriters, the "UNDERWRITERS") for the
offering of the Common Stock outside the United States and Canada (the
"INTERNATIONAL PURCHASE AGREEMENT" and, together with the U.S. Purchase
Agreement, the "PURCHASE AGREEMENTS"). In recognition of the benefit that such
an offering will confer upon the undersigned as a stockholder [and an officer
and/or director] of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to the
next paragraph of this agreement, the undersigned agrees with each of the
Underwriters that, during a period of 180 days from the date of the Purchase
Agreements, the undersigned will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) 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 for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
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 is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
The foregoing paragraph shall not apply to (A) Securities (i) transferred
as a BONA FIDE gift or gifts, provided that the donee or donees thereof agree to
be bound in writing by the restrictions set forth in this agreement, (ii)
transferred to any trust for the direct or indirect benefit of any stockholder
or the immediate family of such stockholder, provided that the trustee of trust
agrees to be bound in writing by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition for value, (iii)
sold by the stockholder but only if and to the extent that such Securities have
been acquired by such stockholder (x) pursuant to the Purchase Agreements or (y)
in the open market after completion of the offering of the Securities by the
Underwriters, or (iv) if the transfer of such Securities occurs by operation of
law, such as rules of intestate succession or statutes governing the effects of
a merger, provided that the transferee executes an agreement stating that the
transferee is receiving and holding the shares subject to the provisions of this
agreement, and (B) any sales of any Securities to the Underwriters pursuant to
the Purchase Agreements. For purposes of this paragraph "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
Very truly yours,
Signature: __________________________
E-2
Print Name: _________________________
E-3
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT...............................................1
SECTION 1. REPRESENTATIONS AND WARRANTIES.................................4
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY..................4
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS............4
(ii) INDEPENDENT ACCOUNTANTS..............................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 AGREEMENT...........................7
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES..........7
(x) ABSENCE OF DEFAULTS AND CONFLICTS....................7
(xi) ABSENCE OF LABOR DISPUTE.............................8
(xii) ABSENCE OF PROCEEDINGS...............................8
(xiii) ACCURACY OF EXHIBITS.................................8
(xiv) POSSESSION OF INTELLECTUAL PROPERTY..................8
(xv) ABSENCE OF FURTHER REQUIREMENTS......................9
(xvi) POSSESSION OF LICENSES AND PERMITS...................8
(xvii) TITLE TO PROPERTY...................................10
(xviii) INVESTMENT COMPANY ACT..............................10
(xix) ENVIRONMENTAL LAWS..................................10
(xx) REGISTRATION RIGHTS.................................11
(xxi) YEAR 2000 PROBLEM...................................11
(xxii) INSURANCE...........................................11
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS.......11
(xxiv) COMPLIANCE WITH CUBA ACT............................11
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS....11
(i) ACCURATE DISCLOSURE.................................11
(ii) AUTHORIZATION OF AGREEMENTS.........................12
(iii) GOOD AND MARKETABLE TITLE...........................12
(iv) DUE EXECUTION OF IRREVOCABLE POWER OF ATTORNEY AND
CUSTODY AGREEMENT...................................12
(v) ABSENCE OF MANIPULATION.............................13
(vi) ABSENCE OF FURTHER REQUIREMENTS.....................13
(vii) RESTRICTION ON SALE OF SECURITIES...................13
(viii) CERTIFICATES SUITABLE FOR TRANSFER..................13
(ix) NO ASSOCIATION WITH NASD............................14
(c) OFFICER'S CERTIFICATES........................................14
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING..........14
(a) INITIAL SECURITIES............................................14
(b) OPTION SECURITIES.............................................14
(c) PAYMENT.......................................................15
(d) DENOMINATIONS; REGISTRATION...................................15
SECTION 3. COVENANTS OF THE COMPANY......................................16
(a) COMPLIANCE WITH SECURITIES REGULATIONS
AND COMMISSION REQUESTS.......................................16
(b) FILING OF AMENDMENTS..........................................16
(c) DELIVERY OF REGISTRATION STATEMENTS...........................16
(d) DELIVERY OF PROSPECTUSES......................................17
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS.....................17
(f) BLUE SKY QUALIFICATIONS.......................................17
(g) RULE 158......................................................18
(h) USE OF PROCEEDS...............................................18
(i) LISTING.......................................................18
(j) RESTRICTION ON SALE OF SECURITIES.............................18
(k) REPORTING REQUIREMENTS........................................18
(l) COMPLIANCE WITH NASD RULES....................................19
(m) COMPLIANCE WITH RULE 463......................................19
SECTION 4. PAYMENT OF EXPENSES...........................................19
(a) EXPENSES......................................................19
(b) EXPENSES OF THE SELLING SHAREHOLDERS..........................20
(c) TERMINATION OF AGREEMENT......................................20
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS.............20
(a) EFFECTIVENESS OF REGISTRATION STATEMENT.......................20
(b) OPINION OF COUNSEL FOR COMPANY................................20
(c) OPINION OF PATENT COUNSEL FOR COMPANY.........................21
(d) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS.................21
(e) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS.................21
(f) OFFICERS' CERTIFICATE.........................................21
(g) CERTIFICATE OF SELLING SHAREHOLDERS...........................22
(h) ACCOUNTANTS' COMFORT LETTER...................................22
(i) BRING-DOWN COMFORT LETTER.....................................22
(j) APPROVAL OF LISTING...........................................22
(k) AMENDED CHARTER DOCUMENTS.....................................22
(l) NO OBJECTION..................................................22
(m) LOCK-UP AGREEMENTS............................................22
(n) PURCHASE OF INITIAL U.S. SECURITIES...........................22
(m) DOWNGRADE OF COMPANY'S SECURITIES.............................23
(n) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES.....23
(o) PURCHASE OF INITIAL U.S. SECURITIES...........................23
(p) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES.....23
(q) ADDITIONAL DOCUMENTS..........................................24
(r) TERMINATION OF AGREEMENT......................................24
SECTION 6. INDEMNIFICATION...............................................24
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS.....................24
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND SELLING
SHAREHOLDERS..................................................25
(c) ACTIONS AGAINST PARTIES; NOTIFICATION.........................26
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE............26
(e) INDEMNIFICATION FOR RESERVED SECURITIES.......................27
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION..............27
SECTION 7. CONTRIBUTION..................................................27
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY...........................................28
SECTION 9. TERMINATION OF AGREEMENT......................................29
(a) TERMINATION; GENERAL..........................................30
(b) LIABILITIES...................................................30
SECTION 10.DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS..........30
SECTION 11.DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS............30
SECTION 12.NOTICES.......................................................31
SECTION 13.PARTIES.......................................................31
SECTION 14.GOVERNING LAW AND TIME........................................31
SECTION 15.EFFECT OF HEADINGS............................................31
SCHEDULES
SCHEDULE A - LIST OF INTERNATIONAL MANAGERS.........................Sch A-1
SCHEDULE B - LIST OF SELLING SHAREHOLDERS...........................Sch B-1
SCHEDULE C - PRICING INFORMATION....................................Sch C-1
SCHEDULE D - LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP........Sch D-1
EXHIBITS
EXHIBIT A - FORM OF OPINION OF COMPANY'S COUNSEL........................A-1
EXHIBIT B - FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.........................B-1
EXHIBIT C - FORM OF OPINION OF PATENT COUNSEL FOR THE COMPANY...........C-1
EXHIBIT D - FORM OF OPINION OF SELLING SHAREHOLDERS' COUNSEL........... D-1
EXHIBIT E - FORM OF LOCK-UP LETTER..................................... E-1