EXHIBIT 1.2
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL INC.
(a Delaware corporation)
[ ] Shares of Common Stock
FORM OF INTERNATIONAL PURCHASE AGREEMENT
Dated: [ ], 1998
20579732.02
Table of Contents
INTERNATIONAL PURCHASE AGREEMENT..................................................................................1
SECTION 1. Representations and Warranties........................................................3
(a) Representations and Warranties by the Company and Mettler.............................3
(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...............................................................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..........................................9
(xvii) Title to Property...........................................................9
(xviii) Investment Company Act.....................................................10
(xix) Environmental Laws.........................................................10
(xx) Registration Rights........................................................10
(xxi) Taxes......................................................................11
(xxii) Accounting Controls........................................................11
(xxiii) Insurance..................................................................11
(xxiv) Stabilization or Manipulation..............................................11
(xxv) Certain Relationships......................................................12
(xxvi) No Offering Material.......................................................12
(xxvii) Suppliers..................................................................12
(b) Representations and Warranties by the Selling Shareholders...........................12
(c) Officer's Certificates...............................................................14
SECTION 2. Sale and Delivery to International Managers; Closing.................................15
(a) Initial Securities...................................................................15
(b) Option Securities....................................................................15
(c) Payment..............................................................................16
(d) Denominations; Registration..........................................................16
SECTION 3. Covenants of the Company.............................................................16
(a) Compliance with Securities Regulations and Commission Requests.......................17
(b) Filing of Amendments.................................................................17
(c) Delivery of Registration Statements..................................................17
(d) Delivery of Prospectuses.............................................................17
i
(e) Continued Compliance with Securities Laws............................................18
(f) Blue Sky Qualifications..............................................................18
(g) Rule 158.............................................................................19
(h) Restriction on Sale of Securities....................................................19
(i) Reporting Requirements...............................................................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.......................................................21
(c) Opinion of German Counsel for the Company............................................21
(d) Opinion of Swiss Counsel for the Company.............................................21
(e) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq...................................................21
(f) Opinion of Counsel for the Selling Shareholders......................................21
(g) Opinion of Counsel for International Managers........................................22
(h) Officers' Certificate................................................................22
(i) Certificate of Selling Shareholders..................................................22
(j) Litigation Certificate...............................................................23
(k) Accountant's Comfort Letter..........................................................23
(l) Bring-down Comfort Letter............................................................23
(m) Approval of Listing..................................................................23
(n) No Objection.........................................................................23
(o) Lock-up Agreements; Registration Rights..............................................23
(p) Purchase of Initial U.S. Securities..................................................23
(q) Conditions to Purchase of International Option Securities............................24
(i) Officers' Certificate......................................................24
(ii) Certificate of Selling Shareholder.........................................24
(iii) Opinion of Counsel for Company.............................................24
(iv) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.........................................24
(v) Opinion of Counsel for Selling Shareholders................................24
(vi) Opinion of Counsel for International Managers..............................25
(vii) Opinion of German Counsel for Company......................................25
(viii) Opinion of Swiss Counsel for Company.......................................25
(ix) Bring-down Comfort Letter..................................................25
(r) Additional Documents.................................................................25
(s) Termination of Agreement.............................................................25
SECTION 6. Indemnification......................................................................26
(a) Indemnification of International Managers............................................26
(b) Indemnification of Selling Shareholders by the Company and Mettler
....................................................................................27
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders.........................................................................28
ii
(d) Actions against Parties; Notification................................................28
(e) Settlement without Consent if Failure to Reimburse...................................29
(f) Other Agreements with Respect to Indemnification.....................................29
SECTION 7. Contribution.........................................................................29
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.......................31
SECTION 9. Termination of Agreement.............................................................31
(a) Termination; General.................................................................31
(b) Liabilities..........................................................................31
SECTION 10. Default by One or More of the International Managers.................................31
SECTION 11. Default by one or more of the Selling Shareholders...................................32
SECTION 12. Notices..............................................................................33
SECTION 13. Parties..............................................................................33
SECTION 14. GOVERNING LAW AND TIME...............................................................33
SECTION 15. Effect of Headings...................................................................34
SCHEDULES
Schedule A - List of Underwriters.........................................................Sch A-1
Schedule B - List of Selling Shareholders.................................................Sch B-1
Schedule C - Shares of Common Stock.......................................................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 Local Counsel Opinion.....................................................B-1
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq........................................C-1
Exhibit D - Form of Opinion of Selling Stockholders' Counsel................................. D-1
Exhibit E - Form of Litigation Certificate of the
Chief Financial Officer of the Company......................................E-1
Exhibit F - Form of Lock-up Letter........................................................... F-1
iii
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL INC.
(a Delaware corporation)
[ ] Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
[ ], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
A DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a Delaware corporation (the
"Company"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. ("Mettler") and the persons listed on
Schedule B hereto (the "Selling Shareholders"), confirm their agreement with
▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
International Managers 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 ▇▇▇▇▇▇▇
▇▇▇▇▇ International and BT Alex. ▇▇▇▇▇ International, a Division of Bankers
Trust International PLC, Credit Suisse First Boston (Europe) Limited, ▇▇▇▇▇▇▇
Sachs International and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as representatives (in
such capacity, the "Lead Managers"), with respect to (i) the sale by the
Selling Shareholders, and the purchase by the International Managers, acting
severally and not jointly, of the respective numbers of shares of Common
Stock, par value $.01 per share, of the Company ("Common Stock") set forth in
Schedules A and B hereto, and (ii) the grant by 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 [ ] additional
shares of Common Stock to cover over-allotments, if any. The aforesaid [ ]
shares of Common
Stock (the "Initial International Securities") to be purchased by the
International Managers and all or any part of the [ ] shares of Common Stock
subject to the option described in Section 2(b) hereof (the "International
Option Securities") are hereinafter called, collectively, the "International
Securities".
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Selling Shareholders of
an aggregate of [ ] 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and BT Alex. ▇▇▇▇▇, Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as
representatives (the "U.S. Representatives"), and the grant by the Selling
Shareholders to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion
of up to [ ] additional shares of Common Stock solely to cover overallotments,
if any (the "U.S. Option Securities" and, together with the International
Option Securities, the "Option Securities"). The Initial U.S. Securities and
the U.S. Option Securities are hereinafter called the "U.S. Securities". It is
understood that the Selling Shareholders are 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 International Managers.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement
has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333- ) covering
the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under
2
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to
rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file
a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434
and Rule 424(b). Two forms of prospectus are to be used in connection with the
offering and sale of the Securities: one relating to the International
Securities (the "Form of International Prospectus") and one relating to the
U.S. Securities (the "Form of U.S. Prospectus"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of
such registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information". Each Form of International Prospectus and Form of U.S.
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
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".
If Rule 434 is relied on, the terms "International Prospectus" and "U.S.
Prospectus" shall refer to the preliminary International Prospectus, dated
[ ], 1998 and preliminary U.S. Prospectus, dated [ ], 1998, respectively, each
together with the applicable Term Sheet and all references in this Agreement
to the date of such Prospectuses shall mean the date of the applicable Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the International Prospectus, the U.S.
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and Mettler. The
Company and Mettler, jointly and severally, represent and warrant 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
3
(if any) referred to in Section 2(b) hereof, and agree 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. If Rule 434
is used, the Company will comply with the requirements of Rule 434
and the Prospectuses shall not be "materially different", as such
term is used in Rule 434, from the prospectuses included in the
Registration Statement at the time it became effective. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as
part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T of the 1933 Act Regulations.
4
(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 schedules and notes, present fairly the consolidated
financial position of the Company and its subsidiaries and, in
respect of the Predecessor Business (as defined in the Registration
Statement under "Selected Historical Financial Information"), of the
Company and its combined affiliated entities, as the case may be, at
the dates indicated and the statement of operations, changes in net
assets, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries and, in respect of the Predecessor
Business, of the Company and its combined affiliated entities, as the
case may be, for the periods specified; said financial statements
have been prepared in conformity with U.S. generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
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. The pro
forma information and the related notes thereto included in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein,
(A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and no material adverse effect on the ability of the
Company or Mettler to enter into this Agreement or the U.S. Purchase
Agreement or to consummate the transactions contemplated in this
Agreement or the U.S. Purchase Agreement (any such material adverse
change or effect, a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
5
(v) Good Standing. The Company and Mettler have been duly
organized and are validly existing as corporations in good standing
under the laws of the State of Delaware and have corporate power and
authority to own, lease and operate their properties and to conduct
their business as described in the Prospectuses and to enter into and
perform their obligations under this Agreement; and the Company and
Mettler are duly qualified as foreign corporations to transact
business and are in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectuses and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except for directors' qualifying
shares or as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each such Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
created pursuant to the Credit Agreement (as defined in the
Registration Statement) or under any local working capital facilities
or interest protection agreements secured under the Credit Agreement
(the "Other Secured Agreements"); and none of the outstanding shares
of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Company's registration
statement on Form S-1 (Registration No. 333-35597) and (b) certain
other subsidiaries which, considered in the aggregate as a single
Subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company shall be as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The shares of issued and outstanding capital stock of
the Company, including the Securities to be purchased by the
Underwriters from the Selling
6
Shareholders, have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company, including the Securities to be
purchased by the Underwriters from the Selling Shareholders, 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 and ▇▇▇▇▇▇▇.
(ix) Authorization and Description of Securities. The Common
Stock conforms in all material respects to all statements relating
thereto contained in the Prospectuses and such description conforms
to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability by
reason of being such a holder.
(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 (a) with respect to the Company's
subsidiaries other than the Subsidiaries, such violations that would
not result in a Material Adverse Effect, and (b) such defaults that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the U.S. Purchase
Agreement by the Company or ▇▇▇▇▇▇▇, the consummation by the Company
or ▇▇▇▇▇▇▇ of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement and the transactions contemplated herein and
in the Registration Statement (including the sale of the Securities),
and compliance by the Company and ▇▇▇▇▇▇▇ with their obligations
under this Agreement and the U.S. Purchase Agreement have been duly
authorized by all necessary corporate action by the Company or
▇▇▇▇▇▇▇, as the case may be, and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments
(except for (A) such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect or (B) such liens, charges, or encumbrances as are created in
connection with the execution, delivery and performance of the Credit
Agreement or the Other Secured Agreements, nor will such action
result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary or any
7
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness
(or any person 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 or ▇▇▇▇▇▇▇, is imminent, and neither the
Company nor ▇▇▇▇▇▇▇ is aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which,
in either case, might 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 or ▇▇▇▇▇▇▇, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement
or the U.S. Purchase Agreement or the performance by the Company and
▇▇▇▇▇▇▇ of their obligations hereunder or under the U.S. Purchase
Agreement, and 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 which are required 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 can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them except where
the failure to so own, possess or acquire, singly and in the
aggregate, would not result in a Material Adverse Effect, and neither
the Company nor any of its subsidiaries has
8
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would 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 or
▇▇▇▇▇▇▇ of their obligations hereunder, in connection with the
offering or sale of the Securities under this Agreement and the U.S.
Purchase Agreement or the consummation of the transactions
contemplated by this Agreement or the U.S. Purchase Agreement, except
such as have been already obtained or as may be required under the
1933 Act or the 1933 Act Regulations and foreign or state securities
or blue sky laws.
(xvi) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them except for such Governmental Licenses the failure of which to
possess would not have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any written notice
of any judicial or administrative proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or as set forth in the Credit Agreement or the Other
Secured Agreements, (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company or any of its subsidiaries or (c) would not have a Material
Adverse Effect; all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the
9
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 as would not singly
or in the aggregate result in a Material Adverse Effect.
(xviii) Investment Company Act. Neither the Company nor
▇▇▇▇▇▇▇ is or upon (a) the sale of the Securities as herein
contemplated or (b) the consummation of the transactions contemplated
by this Agreement or the U.S. Purchase Agreement will be, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, regulation, ordinance, code,
common law or any judicial or administrative interpretation thereof
enforceable at law or in equity, including any applicable judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), 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 subject to regulation under any environmental law
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials subject to regulation
under any environmental law (collectively, "Environmental Laws"), (B)
the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company or ▇▇▇▇▇▇▇, threatened
administrative, regulatory or judicial actions, suits, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the
knowledge of the Company or ▇▇▇▇▇▇▇, there are no events or
circumstances that could 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 the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xx) Registration Rights. Except as described in the
Registration Statement and the Prospectuses, no person has
registration rights or other similar rights to have any
10
securities of the Company registered by the Company under the 1933
Act. Except for persons whose shares have been included in the
Registration Statement, no persons who have registration rights or
other similar rights relating to the Common Stock of the Company have
any such rights to have Common Stock registered pursuant to the
Registration Statement which have not been waived. There are no
persons with registration rights or other similar rights to have any
securities registered by the Company's subsidiaries under the 1933
Act.
(xxi) Taxes. The Company and its subsidiaries have filed all
tax returns that are required to have been filed by them pursuant to
applicable law except insofar as the failure to file such returns
would not result in a Material Adverse Effect, and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company and its subsidiaries, except for such taxes,
if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been provided in
accordance with GAAP, and except for the failure to pay such taxes
which, individually and in the aggregate, would not have a Material
Adverse Effect. The charges, accruals and reserves on the books of
the Company and its subsidiaries in respect of any tax liability for
any years not finally determined are adequate in accordance with GAAP
to meet any assessments or reassessments for additional tax for any
years not finally determined, except to the extent of any inadequacy
that would not result in a Material Adverse Effect.
(xxii) Accounting Controls. The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxiii) 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 policies with respect to such
insurance are in full force and effect.
(xxiv) Stabilization or Manipulation. Neither the Company
nor any of its subsidiaries has taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization
11
or manipulation of the price of any security of any such entity to
facilitate the sale or resale of the Securities.
(xxv) Certain Relationships. No relationship, direct or
indirect, exists between or among any of the Company and any of its
subsidiaries or any affiliate of any such entity, on the one hand,
and any director, officer, stockholder, customer or supplier 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.
(xxvi) No Offering Material. The Company and its
subsidiaries have not distributed and, prior to the later to occur of
(i) the Closing Time and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than the
Registration Statement, any preliminary prospectus, the Prospectus or
other materials, if any, permitted by the 1933 Act and approved by
the U.S. Representatives.
(xxvii) Suppliers. No supplier of merchandise to the Company
or any of its subsidiaries has ceased shipments of merchandise
thereto, which cessation would result in a Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally and not jointly represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time, and, if the Selling
Shareholder is selling Option Securities on a Date of Delivery, as of each
such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Such Selling Shareholder has reviewed and is familiar
with the Registration Statement and the Prospectuses and the
Prospectuses do not contain 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, provided that the representations and
warranties made in this paragraph (i) shall be only with respect to
the information furnished in writing by or on behalf of Such
Shareholder expressly for use in the Registration Statement (or any
amendment thereto).
(ii) Such Selling Shareholder has full right, power and
authority to execute, deliver and perform its obligations under this
Agreement, the U.S. Purchase Agreement and the Power of Attorney and
Custody Agreement, and to sell, transfer and deliver the Securities
pursuant to this Agreement; and this Agreement, the U.S. Purchase
Agreement and the Power of Attorney and Custody Agreement have been
duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and constitutes a valid and binding agreement of
such Selling Shareholder, enforceable against such Selling
12
Shareholder in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting enforcement of creditors'
rights generally or by general principles of equity.
(iii) There is no action, suit or proceeding before or by
any government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of such Selling
Shareholder, threatened, to which such Selling Shareholder is or
would be a party or of which the property of such Selling Shareholder
is or may be subject, that (i) seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the sale of Securities by such
Selling Shareholder or any of the other transactions contemplated
hereby or (ii) questions the legality or validity of any such
transactions or seeks to recover damages or obtain other relief in
connection with any such transactions.
(iv) No filing, authorization, approval, consent, license,
order, registration or qualification of or with any government,
governmental instrumentality or court (other than under the 1933 Act
and the 1933 Act Regulations and the securities or blue sky laws of
the various states in connection with the sale of the Securities),
domestic or foreign, is required by reason of facts specifically
pertaining to such Selling shareholder or its legal or regulatory
status in connection with the due authorization, execution and
delivery by such Selling Shareholder of this Agreement, the U.S.
Purchase Agreement or the Power of Attorney and Custody Agreement and
the valid sale and delivery of the Securities to be sold by such
Selling Shareholder hereunder and thereunder.
(v) The execution, delivery and performance of this
Agreement, the U.S. Purchase Agreement and the Power of Attorney and
Custody Agreement by such Selling Shareholder, the sale of the
Securities by such Selling Shareholder hereunder and thereunder, the
consummation by such Selling Shareholder of the transactions herein
and therein contemplated and the compliance by such Selling
Shareholder with all the provisions of this Agreement, the U.S.
Purchase Agreement and the Power of Attorney and Custody Agreement
will not result in a violation of the charter or bylaws of such
Selling Shareholders which are corporations or the partnership
agreement or certificate of limited partnership, if applicable, of
such Selling Shareholders which are partnerships and will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any material
agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder is bound, nor will such action
result in any violation of the provisions of any statute relating to
such Selling Shareholders or its legal or regulatory status or any
judgment, order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling Shareholder.
13
(vi) Such Selling Shareholder has, and will at the Closing
Time have, and, if such Selling Shareholder is selling Option Shares
on a Date of Delivery, will on the Date of Delivery have, valid and
marketable title to the Securities to be sold by the Selling
Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; and, at the Closing
Time and, if such Selling Shareholder is selling Option Shares on a
Date of Delivery, at the Date of Delivery, upon delivery of the
Securities to be sold by such Selling Shareholder and payment of the
purchase price therefor as contemplated in this Agreement and the
U.S. Purchase Agreement, each of the Underwriters will receive good
and marketable title to the Securities purchased by it from such
Selling Shareholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
(vii) Certificates for all of the Securities to be sold by
such Selling Shareholder pursuant to this Agreement and the U.S.
Purchase Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in
blank with signatures guaranteed, have been placed in custody with
the Custodian for delivery to the International Managers pursuant to
this Agreement and the U.S. Underwriters pursuant to the U.S.
Purchase Agreement.
(viii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock; and such Selling
Shareholder has not distributed and will not distribute any
prospectus (as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the
Securities other than any preliminary prospectus filed with the
Commission or the Prospectuses or other material permitted by the
1933 Act or the 1933 Act Regulations.
(ix) Except as described in the Registration Statement and
the Prospectuses, 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 the Company's subsidiaries delivered to the
Global Coordinator, the Lead Managers or to counsel for the International
Managers shall be deemed a joint and several representation and warranty by
the Company and ▇▇▇▇▇▇▇ 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 representatives or to counsel for
the International Managers pursuant
14
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, each Selling Shareholder, severally and not jointly, agrees to sell to
each International Manager, severally and not jointly, and each International
Manager, severally and not jointly, agrees to purchase from each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion
of Initial International Securities set forth in Schedule B opposite the name
of such Selling Shareholder, as the case may be, which 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 bears to the total number of
Initial International Securities, subject, in each case, to such adjustments
among the International Managers as the Lead Managers in their sole discretion
shall make to eliminate any sales or purchases of fractional shares.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Shareholders, acting severally and
not jointly, hereby grant an option to the International Managers, severally
and not jointly, to purchase up to an additional [ ] shares of Common Stock,
as set forth in Schedule B, at the price per share set forth in Schedule C,
less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial International Securities but not
payable on the International Option Securities. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Global Coordinator to the 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.
15
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by the Global Coordinator, the Company and the Selling
Shareholders, 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 Selling Shareholders
(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, the Company and
the Selling Shareholders, on each Date of Delivery as specified in the notice
from the Global Coordinator to the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholders' Power of Attorney and Custody
Agreement, as the case may be, against delivery to the Lead Managers for the
respective accounts of the International Managers of certificates for the
International Securities to be purchased by them. It is understood that each
International Manager has authorized the Lead Managers for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Initial International Securities and the International Option Securities,
if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not
as representative of the International Managers, may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Securities or the International Option Securities, if any, to be purchased by
any International Manager whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities 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:
16
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the 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 or counsel for the International Managers shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Lead Managers and counsel for the International Managers
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Lead Managers without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the International
Managers The copies of the Registration Statement and each amendment thereto
furnished to the International Managers will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager,
17
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 permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply 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 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 it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Company
will furnish to the International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably request;
provided, however, that if the date of any such amendment or supplement is
more than 270 days after the date hereof, the preparation, filing and
furnishing of such amendment or supplement shall be at the expense of the
Underwriters.
(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.
18
(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) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (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 or transfer any shares 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 other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities 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, (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan, (E) the
issuance of options under the Company's stock option plan and the exercise by
the Company's employees of their rights relating thereto or (F) the filing of
a registration statement on Form S-8 under the 1933 Act relating to Common
Stock pursuant to the Company's stock option plan.
(i) 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.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and ▇▇▇▇▇▇▇, jointly and severally, will
pay all expenses incident to the performance of their obligations 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
19
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's and the Selling
Shareholder's counsel, accountants and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto (such fees and expenses of counsel not to exceed $5,000.00), (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets 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 and (x) the fees and expenses incurred in
connection with the listing of the Securities on the NYSE.
(b) Expenses of the Selling Shareholders. Except as provided in
section 4 above, the Selling Shareholders, severally and not jointly, will pay
all expenses incident to the performance of their respective obligations
under, and the consummation of the transactions contemplated by this
Agreement, including 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 Underwriters pursuant to an agreement
between such Underwriters.
(c) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5(s) or
Section 9(a)(i) or Section 11 hereof, the Company and ▇▇▇▇▇▇▇ shall reimburse
the International Managers for all of their reasonable out-of-pocket expenses,
including the 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 in all material respects 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 ▇▇▇▇▇▇▇ of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at 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
20
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 amendment providing such
information shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Company has elected to rely upon
Rule 434, a Term Sheet shall have been filed with the Commission in accordance
with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time,
of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company
and the Selling Shareholders, in form and substance satisfactory to counsel
for the International Managers together with signed or reproduced copies of
such letter for each of the other International Managers to the effect set
forth in Exhibit A hereto and to such further effect as counsel to the
International Managers may reasonably request.
(c) Opinion of German Counsel for the Company. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of Bruckhaus ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, special German counsel for the Company,
in form and substance satisfactory to counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the International Managers may reasonably
request, with respect to each direct or indirect subsidiary of the Company or
▇▇▇▇▇▇▇ organized under the laws of Germany.
(d) Opinion of Swiss Counsel for the Company. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of Pestalozzi ▇▇▇▇▇ & ▇▇▇▇▇, special Swiss counsel for the Company, in
form and substance satisfactory to counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the International Managers may reasonably
request, with respect to each direct or indirect subsidiary of the Company or
▇▇▇▇▇▇▇ organized under the laws of Switzerland.
(e) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. At the Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., in form and substance reasonably
satisfactory to counsel for the International Managers, together with signed
or reproduced copies of such letter for each of the other International
Managers to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the International Managers may reasonably request.
(f) 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 counsel for each of the Selling Shareholders listed on
Schedule E hereto, in form and substance satisfactory
21
to counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers to the
effect set forth in Exhibit D hereto and to such further effect as counsel to
the International Managers may reasonably request
(g) Opinion of Counsel for International Managers. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇, 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 (1),
(2), (5) (but with respect to preemptive or other similar rights, solely as to
preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (7) through (10), inclusive, (11) (solely
as to the information in the Prospectus under "Description of Capital
Stock--Common Stock") and the first full paragraph of text following clause 16
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, 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 proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(h) 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 in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and 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 each of the Company and ▇▇▇▇▇▇▇, in each case dated as of Closing
Time, to the effect that (i) there has been no such Material Adverse Effect,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct in all material respects with the same force and effect as though
expressly made at and as of Closing Time, (iii) each of the Company and
▇▇▇▇▇▇▇ has complied with all agreements and satisfied all conditions
contained in this Agreement and the U.S. Purchase Agreement on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and, to the knowledge of such officer no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(i) 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
22
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(j) Litigation Certificate. At Closing Time, the Lead Managers shall
have received a certificate of the chief financial officer of the Company,
dated as of Closing Time, in form and substance satisfactory to counsel for
the International Managers to the effect set forth in Exhibit E.
(k) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Managers shall have received from KPMG Fides Peat 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.
(l) Bring-down Comfort Letter. At Closing Time, the Lead Managers
shall have received from KPMG Fides Peat a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (k) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(m) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the NYSE.
(n) 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.
(o) Lock-up Agreements; Registration Rights. At the date of this
Agreement, the Lead Managers shall have received an agreement substantially in
the form of Exhibit F hereto signed by the persons listed on Schedule D
hereto. The Company has shall have taken all required action so that no person
(other than persons whose shares are included in the Registration Statement)
who has registration rights or other similar rights relating to Common Stock
of the Company to have Common Stock registered pursuant to the Registration
Statement shall be permitted to exercise such rights; and no such person who
has registration rights or other similar rights relating to the Common Stock
of the Company to have Common Stock registered pursuant to the Registration
Statement shall have exercised such rights (other than persons whose shares
are included in the Registration Statement).
(p) 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.
23
Underwriters shall have purchased the Initial U.S. Securities under the U.S.
Purchase Agreement.
(q) 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, any subsidiary of the Company or the Selling Shareholders
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of each of the
Company, ▇▇▇▇▇▇▇ and of the chief financial or chief accounting
officer of each of the Company and ▇▇▇▇▇▇▇ confirming that the
certificate delivered at the Closing Time pursuant to Section 5(h)
hereof remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholder. A certificate,
dated such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(i) remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion
of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company and the Selling Shareholders, in form and substance
reasonably 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 ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. The favorable
opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., dated such Date of Delivery, in
form and substance reasonably satisfactory to counsel for the
International Managers and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(v) Opinion of Counsel for Selling Shareholders. The
favorable opinion of counsel for each of the Selling Shareholders
listed on Schedule E hereto, in form and substance reasonably
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(d) hereof.
24
(vi) Opinion of Counsel for International Managers. The
favorable opinion of Debevoise & ▇▇▇▇▇▇▇▇, 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(f) hereof.
(vii) Opinion of German Counsel for Company. The favorable
opinion of Bruckhaus ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, special German counsel for
the Company, in form and substance reasonably 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(c) hereof.
(viii) Opinion of Swiss Counsel for Company. The favorable
opinion of Pestalozzi ▇▇▇▇▇ & ▇▇▇▇▇, special Swiss counsel for the
Company, in form and substance reasonably 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(d) hereof.
(ix) Bring-down Comfort Letter. A letter from KPMG Fides
Peat, in form and substance satisfactory to the Lead Managers and
dated such Date of Delivery, and substantially in the same form and
substance as the letter furnished to the Lead Managers pursuant to
Section 5(l) 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.
(r) 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 reasonably request 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 sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Lead Managers
and counsel for the International Managers.
(s) Termination of Agreement. If any condition specified in this
Section 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
25
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. Each of the Company,
and Mettler, jointly and severally, agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or 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 contained in any preliminary prospectus
or the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (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 Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto) and (b) with respect to any preliminary
26
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 and the loss, liability, claim, damage or expense of
such International Manager results from an untrue statement or omission of a
material fact contained in the preliminary prospectus that was corrected in
the International Prospectus.
Each Selling Shareholder agrees, severally and not jointly,
to indemnify and hold harmless each International Manager and each person, if
any, who controls any International Manager within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, the Company, its directors, its
officers who sign the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company and
Mettler to each International Manager; provided however, that with respect to
each Selling Shareholder, the indemnification provision in the paragraph shall
be only with respect to the information furnished in writing by or on behalf
of such Selling Shareholder expressly for use in the Registration Statement
(or any amendment thereto), including Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary International prospectus or
International Prospectus (or any amendment or supplement thereto); and
provided, further, that the aggregate liability of any Selling Shareholder
pursuant to this paragraph shall be limited to the net proceeds recovered by
such Selling Shareholder from the Securities purchased by the Underwriters
from such Selling Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement; and provided further, that no Selling Shareholder shall be liable
for any untrue statement, omission or alleged omission of any other Selling
Shareholder.
(b) Indemnification of Selling Shareholders by the Company and
Mettler. The Company and Mettler, jointly and severally, agree to indemnify
and hold harmless each of the Selling Shareholders and each person, if any,
who controls any Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent that the Company and
Mettler have agreed to indemnify and hold harmless each International Manager
pursuant to the preceding paragraph; provided, however, the Company and
Mettler shall not be liable under this paragraph to the extent any loss,
liability, claim, damage or expense described in the preceding paragraph
arises out of or is based upon an untrue statement, alleged untrue statement,
omission or alleged omission based upon information relating to such Selling
Shareholder 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) Indemnification of Company, Directors and Officers and 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 and each person, if any, who controls any
Selling Shareholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary International Prospectus or
the International Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such International Manager through ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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).
(d) 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 Sections
6(b) and 6(c) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
28
(e) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(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.
(f) Other Agreements with Respect to Indemnification. The provisions
of this Section shall not affect any agreement among the Company, Mettler and
the Selling Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company, Mettler 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, Mettler and the Selling Shareholders
on the one hand and of the International Managers on the other hand in
connection with the statements or omissions, which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, Mettler 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, or, if Rule 434 is used, the corresponding
location on the Term Sheet, bear to the aggregate initial public offering
price of the International Securities as set forth on such cover.
The relative fault of the Company, Mettler 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,
29
Mettler and the Selling Shareholders on the one hand or by the International
Managers on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company, Mettler, the Selling Shareholders and the International
Managers agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
International Managers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the U.S.
Securities purchased from such Selling Stockholder and (ii) 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 a
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 7 are several in proportion to the number of Initial
International Securities set forth opposite their respective names in Schedule
A hereto and not joint.
The provisions of this Section shall not affect any agreement among
the Company, Mettler and the Selling Shareholders with respect to
contribution.
30
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, Mettler, any
subsidiaries 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, Mettler or the Selling
Shareholders, and shall survive delivery of the Securities to the
International Managers.
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 in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States 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 judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to
market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the NYSE, or if trading generally on
the American Stock Exchange, the NYSE 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, New York
or Swiss 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 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at 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"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
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
31
may be agreed upon and upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇
▇▇▇▇▇ 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, each of the non-defaulting International Managers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after
the 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 the Closing Time, which does not result in a termination of the
obligation of the International Managers to purchase and the Company to sell
the relevant International Option Securities, as the case may be, either (i)
the Lead Managers or (ii) any Selling Shareholder 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 Prospectus or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for a International Manager under this Section 10.
SECTION 11. Default by one or more of the Selling Shareholders. (a)
If a Selling Shareholder shall fail at Closing Time or at a Date of Delivery
to sell and deliver the number of Securities which such Selling Shareholders
are obligated to sell hereunder, and the remaining Selling Shareholders 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 option of the Lead Managers, by notice from the
Lead Managers to the Company and the non-defaulting Selling Shareholders,
either (i) terminate this Agreement without any liability on the fault 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 11
32
shall relieve any Selling Shareholder so defaulting from liability, if any, in
respect of such default.
In the event of a default by any Selling Shareholder as referred to
in this Section 11, each of the Lead Managers. the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in
any other documents or arrangements.
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 c/o Merrill
▇▇▇▇▇ at North Tower, World Financial Center, New York, New York 10281-1201,
attention of Syndicate Operations, with a copy to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; notices
to the Company and Mettler shall be directed to the Company at ▇▇▇▇▇▇▇-▇▇▇▇▇▇
International Inc., Im Langacher, ▇.▇. ▇▇▇ ▇▇-▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and notices to the Selling Shareholders shall be
delivered to AEA Investors Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers, the Company, Mettler 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, Mettler 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, Mettler 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.
33
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.
34
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 among the
International Managers, the Company, Mettler and the Selling Shareholders in
accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL
INC.
By:
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
By:
-------------------------------
Name:
Title:
EACH OF THE SELLING
SHAREHOLDERS LISTED ON
SCHEDULE B HERETO
By:
-------------------------------
As Attorney-in-Fact acting on behalf of
the Selling Shareholders named in
Schedule B hereto
35
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
A DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By -------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
36
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International ...........................................................
BT Alex. ▇▇▇▇▇ International,
A Division of Bankers Trust International Plc .....................................
Credit Suisse First Boston (Europe) Limited ...........................................
▇▇▇▇▇▇▇ Sachs International ...........................................................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. .....................................................................
Total..................................................................................
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be Sold
--------------------- ---------------------
Sch B-1
SCHEDULE C
Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the International
Securities to be paid by the several International Managers shall be
$[ ], being an amount equal to the initial public offering price set
forth above less $[ ] per share; provided that the purchase price
per share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
Sch C-1
SCHEDULE D
List of persons and entities
subject to lock-up
Sch D-1
SCHEDULE E
List of Selling Stockholders
delivering opinions pursuant
to Sections 5(f) and 5(q)(v)
Sch E-1
Exhibit A
FORM OF OPINION OF FRIED, FRANK,
HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ TO BE
DELIVERED PURSUANT TO SECTION 5(b)
[TO COME]
Exhibit B
FORM OF LOCAL COUNSEL OPINION TO BE DELIVERED PURSUANT TO
SECTIONS 5(c) AND (d)
i Each of [names of local subsidiaries] (collectively, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation [in good standing]1 under laws of |X|, and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectuses; 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 our knowledge, is owned by |X|; to our
knowledge, 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 arising under the laws of |X| for the
charter or by-laws of such Subsidiary.
ii To our knowledge, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or any of the
Subsidiaries is a party, or to which the property of the Company or any of the
Subsidiaries is subject, before or brought by any court, governmental agency
or body in |X|, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the U.S.
Purchase Agreement and the International Purchase Agreement or the performance
by the Company or Mettler of its obligations thereunder.
iii The execution, delivery and performance of the U.S. Purchase
Agreement and the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the International
Purchase Agreement and in the Registration Statement (including 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 the compliance by the Company, Holdings, and Mettler with
their respective obligations under the U.S. Purchase Agreement and the
International Purchase Agreement, do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under, or result in the creation or imposition of any
Liens upon any property or assets of any Subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, known to us, to which a Subsidiary is a
party or by which any of them may be bound, or to which any of the property or
assets of the Subsidiaries is subject (except for Liens under the Credit
Agreement and the Working Capital Facilities and such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
--------
1 If concept is recognized in local jurisdiction.
B-1
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Subsidiaries, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to us,
of any government, government instrumentality or court of |X| having
jurisdiction over the Subsidiaries or any of their respective properties,
assets or operations.
B-2
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ. TO BE
DELIVERED PURSUANT TO SECTION 5(E)
(i) To my knowledge, the Company is not in violation of its Amended
and Restated Certificate of Incorporation or amended By-laws.
(ii) To my knowledge, there are no persons with registration rights
or other similar rights arising under the Amended and Restated Certificate of
Incorporation or amended By-laws of the Company or the corporation laws of the
State of New York, Delaware General Corporation Law or United States federal
securities laws to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act, except
for persons who have waived such rights or whose shares are included in the
Registration Statement.
C-1
Exhibit D
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER(S)
TO BE DELIVERED PURSUANT TO SECTION 5(f)
[TO COME]
Exhibit E
[Letterhead of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.]
Litigation Certificate
----------------------
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, hereby certifies that
he is the Chief Financial Officer of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a
Delaware corporation (the "Company"), and that, as such, he is authorized to
execute and deliver this Certificate on behalf of the Company and, with
reference to the Section 5(j) of the U.S. Purchase Agreement (the "U.S.
Purchase Agreement"), dated /x/, among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), a Delaware corporation, the Selling Shareholders listed in
Schedule B thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, [ ], as representatives of the underwriters listed in
Schedule A to the U.S. Purchase Agreement, and Section 5[(h)] of the
International Purchase Agreement (the "International Purchase Agreement" and
together with the U.S. Purchase Agreement, the "Purchase Agreements"), dated
/x/, 1998, among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, the Selling Shareholders listed in
Schedule [ ] thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, [ ],
as lead managers to the underwriters listed in Schedule A to the International
Purchase Agreement, further certifies, represents and warrants on behalf of
the Company as follows (each capitalized term used herein without definition
having the same meaning specified in the Purchase Agreements):
(a) to the best of his knowledge, based upon certifications made by
officers of the Company and its subsidiaries in the form attached
hereto as Exhibit A, the undersigned has set forth in Exhibit B
attached hereto all actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency
or body, domestic or foreign, pending or threatened against or
affecting the Company or any of its subsidiaries, at the Closing
Time, where the maximum level of liability is equal to or greater
than $250,000; and
(b) further certifies, represents and warrants on behalf of the
Company that none of such actions, suits, proceedings, inquiries or
investigations set forth in Exhibit B would reasonably be expected to
have a Material Adverse Effect or would reasonably be expected to
materially or adversely affect the property or assets of the Company
or its subsidiaries or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the
Company or ▇▇▇▇▇▇▇-▇▇▇▇▇▇ of its obligations hereunder or thereunder.
E-1
WITNESS the signature of the undersigned this ____ day of [ ],1998.
-----------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
E-2
Exhibit F
[FORM OF LOCK-UP PURSUANT TO SECTION 5(o)]
, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
BT ALEX. ▇▇▇▇▇
CREDIT SUISSE FIRST BOSTON
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
as Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
A DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several International Underwriters
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.
▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇-▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: Proposed Public Offering ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.
Dear Sirs:
The undersigned, a [stockholder] [and an officer and/or director] of
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a Delaware corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), [ ] propose to enter into a U.S. Purchase
Agreement (the "U.S. Purchase Agreement") with the Company and the Selling
Shareholders, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, [ ] propose to enter
into an International
F-1
Purchase Agreement (the "International Purchase Agreement") with the Company
and the Selling Shareholders, each providing for the public offering (the
"Offerings") of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). 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,
the undersigned agrees with each underwriter to be named in the U.S. Purchase
Agreement or the International Purchase Agreement that, during a period of 90
days from the date of the U.S. Purchase Agreement, 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 (except through gifts to persons, trusts or other
entities who agree in writing to be bound by the restrictions of this letter),
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; provided, however,
that (i) the Company may file a registration statement on Form S-8 under the
Securities Act of 1933 relating to Common Stock of the Company issued pursuant
to the Company's stock option plan (the "Stock Plan"), and (ii) employees of
the Company may exercise rights to acquire Common Stock pursuant to the Stock
Plan.
Sincerely,
If Individual:
Print Name
Signature
If Corporation, Partnership or Trust:
[print or type name of entity]
By:
Name:
Title:
F-2