MT INVESTORS INC.
(a Delaware corporation)
(to be renamed ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.)
Shares of Common Stock
FORM OF U.S. PURCHASE AGREEMENT
Dated: , 1997
Table of Contents
U.S. PURCHASE AGREEMENT.......................................................1
SECTION 1. Representations and Warranties.............................5
(a) Representations and Warranties by the Company and Mettler..5
(i) Compliance with Registration Requirements.............5
(ii) Independent Accountants..............................6
(iii) Financial Statements................................6
(iv) No Material Adverse Change in Business...............7
(v) Good Standing.........................................8
(vi) Good Standing of Subsidiaries........................8
(vii) Capitalization......................................9
(viii) Authorization of Agreement.........................9
(ix) Authorization and Description of Securities..........9
(x) Absence of Defaults and Conflicts....................10
(xi) Absence of Labor Dispute............................11
(xii) Absence of Proceedings.............................11
(xiii) Accuracy of Exhibits..............................11
(xiv) Possession of Intellectual Property................11
(xv) Absence of Further Requirements.....................12
(xvi) Possession of Licenses and Permits.................12
(xvii) Title to Property.................................13
(xviii) Investment Company Act...........................13
(xix) Environmental Laws.................................13
(xx) Registration Rights.................................14
(xxi) Taxes..............................................14
(xxii) Accounting Controls...............................15
(xxiii) Insurance........................................15
(xxiv) Stabilization or Manipulation.....................15
(xxv) Certain Relationships..............................15
(xxvi) No Offering Material..............................16
(xxvii) Suppliers........................................16
(xxviii) Authority to Consummate Merger and Related
Transactions....................................16
(xxix) Appraisal Rights..................................17
(b) Officer's Certificates....................................17
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing...........17
(a) Initial Securities........................................17
(b) Option Securities.........................................17
(c) Payment...................................................18
(d) Denominations; Registration...............................19
SECTION 3. Covenants of the Company..................................19
i
(a) Compliance with Securities Regulations and Commission
Requests..................................................19
(b) Filing of Amendments......................................20
(c) Delivery of Registration Statements.......... ............20
(d) Delivery of Prospectuses..................................20
(e) Continued Compliance with Securities Laws.................20
(f) Blue Sky Qualifications...................................21
(g) Rule 158..................................................21
(h) Use of Proceeds...........................................22
(i) Restriction on Sale of Securities.........................22
(j) Reporting Requirements....................................22
(k) Compliance with NASD Rules................................23
SECTION 4. Payment of Expenses.......................................23
(a) Expenses..................................................23
(b) Termination of Agreement..................................24
SECTION 5. Conditions of U.S. Underwriters' Obligations..............24
(a) Effectiveness of Registration Statement...................24
(b) Opinion of Counsel for Company............................24
(c) Opinion of German Counsel for the Company.................25
(d) Opinion of Swiss Counsel for the Company..................25
(e) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq........................25
(f) Opinion of Counsel for U.S. Underwriters..................25
(g) Officers' Certificate.....................................26
(h) Litigation Certificate....................................26
(i) Accountant's Comfort Letter...............................26
(j) Bring-down Comfort Letter.................................27
(k) Approval of Listing.......................................27
(l) No Objection..............................................27
(m) Lock-up Agreements; Registration Rights...................27
(n) Purchase of Initial International Securities..............27
(o) Reorganization. .........................................27
(p) Reliance Letters..........................................27
(q) Conditions to Purchase of U.S. Option Securities..........28
(r) Additional Documents......................................29
(s) Termination of Agreement..................................29
SECTION 6. Indemnification...........................................30
(a) Indemnification of U.S. Underwriters......................30
(b) Indemnification of Company, Directors and Officers........31
(c) Actions against Parties; Notification.....................32
(d) Settlement without Consent if Failure to Reimburse........32
(e) Indemnification for Reserved Securities...................33
SECTION 7. Contribution..............................................33
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery..................................................35
ii
SECTION 9. Termination of Agreement..................................35
(a) Termination; General......................................35
(b) Liabilities...............................................35
SECTION 10. Default by One or More of the U.S. Underwriters...........36
SECTION 11. Notices...................................................36
SECTION 12. Parties...................................................37
SECTION 13. GOVERNING LAW AND TIME....................................37
SECTION 14. Effect of Headings........................................37
SCHEDULES
Schedule A - List of Underwriters............................ Sch A-1
Schedule B - Pricing Information............................. Sch B-1
Schedule C - List of persons and entities subject to lock-up. Sch C-1
EXHIBITS ............................................................ A-1
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 Litigation Certificate of the
Chief Financial Officer of the Company.............. D-1
Exhibit E - Form of Lock-up Letter............................... E-1
iii
MT INVESTORS INC.
(a Delaware corporation)
(to be renamed ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.)
Shares of Common Stock
(Par Value $.01 Per Share)
FORM OF U.S. PURCHASE AGREEMENT
, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
B.T. ALEX. ▇▇▇▇▇ INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
MT Investors Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. ("Mettler"), confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
each of the other U.S. Underwriters named in Schedule A hereto (collectively,
the "U.S. Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇. ▇▇▇▇. ▇▇▇▇▇ Incorporated, Credit Suisse First Boston Corporation and
▇▇▇▇▇▇▇, Sachs & Co. are acting as representatives (in such capacity, the "U.S.
Representatives"), with respect to the issue and sale by the Company and the
purchase by the U.S. Underwriters, 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 said Schedule A, and with respect to the
grant by the Company to the U.S. Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase all or any part of o
additional shares of
Common Stock to cover over-allotments, if any. The aforesaid shares of Common
Stock (the "Initial U.S. Securities") to be purchased by the U.S. Underwriters
and all or any part of the shares of Common Stock subject to the option
described in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter
called, collectively, the "U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of shares of Common
Stock (the "Initial International Securities") through arrangements with certain
underwriters outside the United States and Canada (the "International Managers")
for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, BT Alex. ▇▇▇▇▇ International, a Division
of Bankers Trust International PLC, Credit Suisse First Boston (Europe) Limited
and ▇▇▇▇▇▇▇ Sachs International are acting as lead managers (the "Lead
Managers"), and the grant by the Company to the International Managers, acting
severally and not jointly, of an option to purchase all or any part of the
International Managers' pro rata portion of up to additional shares of Common
Stock solely to cover overallotments, if any (the "International Option
Securities" and, together with the U.S. Option Securities, the "Option
Securities"). The Initial International Securities and the International Option
Securities are hereinafter called the "International Securities". It is
understood that the Company is not obligated to sell and the U.S. Underwriters
are not obligated to purchase any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers 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 understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
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The Company and the U.S. Underwriters agree that up to shares of the
Initial U.S. Securities to be purchased by the U.S. Underwriters and that up to
shares of the Initial International Securities to be purchased by the
International Managers (collectively, the "Reserved Securities") shall be
reserved for sale by the Underwriters to certain employees of the Company and
its subsidiaries and certain other persons, as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
purchase by such employees and persons by the end of the first business day
after the date of this Agreement, such Reserved Securities may be offered to the
public as part of the public offering contemplated hereby.
Mettler is a wholly owned subsidiary of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Holding Inc.
("Holding"), which in turn is a wholly owned subsidiary of the Company. At or
prior to the Closing Time (as defined below), (i) Holding will be merged with
and into the Company, with the Company being the surviving corporation (the
"Merger"), pursuant to a merger agreement (the "Merger Agreement"), (ii) the
Company will change its name to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc. and (iii) in
the Merger, each share of the Class A, Class B and Class C common stock of the
Company will be converted into 12.58392 shares of Common Stock of the Company
and each outstanding stock option to receive Class A, Class B and Class C common
stock of the Company which is outstanding at the time of effectiveness of the
Merger will be converted into and represent an option to receive shares of
Common Stock. The foregoing transactions are referred to as the
"Reorganization." Existing stockholders of the Company will receive a cash
payment (at the initial public offering price) in lieu of any fractional shares
that would be required to be issued as a result of the Reorganization. All
references herein to the Company shall be to (i) MT Investors Inc. prior to the
Reorganization and (ii) ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., the surviving
corporation resulting from the Merger.
In addition, prior to or simultaneously with the issuance and sale of
the U.S. Securities and the International Securities, (i) the Company and
certain of its subsidiaries will enter into a Bank Credit Agreement with ▇▇▇▇▇▇▇
▇▇▇▇▇, as arranger and documentation agent, and the various lending institutions
named therein (the "New Bank Credit Agreement"), and (ii) ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
("MTI"), a wholly owned subsidiary of Holding, will effect the Note Repurchase
(as defined in the Registration Statement), which will consist of a tender offer
for MTI's 9 3/4% Senior Subordinated Notes due 2006 (the "Notes") and a related
consent solicitation for amendments to the Indenture governing the Notes, and
will execute and deliver a supplemental indenture to such Indenture (the
"Supplemental Indenture") to effect such amendments thereto. The
3
foregoing transactions are hereinafter referred to collectively as the
"Related Transactions".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-35597) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The Registration Statement
also contains a form of prospectus to be used in connection with the issuance by
the Company of shares of its Common Stock pursuant to the Merger. 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 U.S. Prospectus and
Form of International 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 U.S. Prospectus and the final Form of International Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively, the "Prospectuses". If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated , 1997 and preliminary
International Prospectus
4
dated , 1997, respectively, each together with the applicable Term Sheet
and all references in this Agreement to the date of such Prospectuses shall mean
the date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
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 U.S.
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agree with each U.S. Underwriter, 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 U.S. 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 and
the Prospectuses, any preliminary prospectuses and any supplement
thereto or any prospectus wrapper prepared in connection therewith, at
their respective times of issuance and at the Closing Time, complied
and will comply in all material respects with any applicable laws or
regulations of foreign jurisdictions in which the Prospectuses and such
preliminary prospectuses, as amended or supplemented, if applicable,
are distributed in connection with the offer and sale of Reserved
Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any
5
prospectus wrapper), at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time (and, if any
U.S. 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 U.S. Prospectus made in reliance upon and
in conformity with information furnished to the Company in writing by
any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement or the U.S. 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.
(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
6
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 financial statements and the
related notes thereto included in the Registration Statement and the
Prospectuses present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(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, Holding,
Mettler or any other subsidiary of the Company, as the case may be, to
enter into this Agreement, the International Purchase Agreement, the
Merger Agreement, the New Bank Credit Agreement, the Supplemental
Indenture or the dealer manager agreement with respect to the Note
Repurchase ("the Dealer Manager Agreement") or to consummate the
transactions contemplated in this Agreement or the International
Purchase Agreement or the Related Transactions (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.
(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
7
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 the New Bank Credit
Agreement or under any local working capital facilities or interest
protection agreements secured under the New Bank 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 Registration Statement 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. After giving effect to the
Reorganization, the authorized, issued and outstanding capital stock of
the Company shall be as set forth in the Prospectuses in the column
entitled "As Adjusted" 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 to be issued by the Company in
connection with the
8
Reorganization have been or will be, upon completion of the
Reorganization, duly authorized and validly issued and are, or upon
issuance thereof in connection with and pursuant to the Reorganization,
will be, fully paid and non-assessable; none of such outstanding shares
of capital stock of the Company has been or will be, upon completion of
the Reorganization, issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company and ▇▇▇▇▇▇▇, and all actions and
proceedings required under applicable law to be taken by the Company
and its subsidiaries in connection with the Merger will have been duly
and validly taken on or prior to the effective date of the Merger; and
on or prior to the Closing Time, the Merger will have been duly and
validly effected.
(ix) Authorization and Description of Securities. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for
issuance and sale to the U.S. Underwriters pursuant to this Agreement
and the International Managers pursuant to the International Purchase
Agreement, respectively, and, when issued and delivered by the Company
pursuant to this Agreement and the International Purchase Agreement,
respectively, against payment of the consideration set forth herein and
in the International Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable; the Common Stock conforms in all
material respects to all statements relating thereto contained in the
Prospectuses and 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; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments"), except for (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
9
Agreement and the International Purchase Agreement by the Company or
▇▇▇▇▇▇▇, the consummation by the Company or its subsidiaries of the
transactions contemplated in this Agreement and the International
Purchase Agreement, the Related Transactions and the transactions
contemplated 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 compliance by the Company and its subsidiaries with
their obligations under this Agreement, the International Purchase
Agreement, the Merger Agreement, the New Bank Credit Agreement, the
Supplemental Indenture and the Dealer Manager Agreement, have been duly
authorized by all necessary corporate action by the Company or its
subsidiaries, as the case may be, except for any required approval of
the Merger by the stockholders of the Company, which approval will be
obtained prior to the Closing Date, 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 New Bank Credit
Facility 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 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.
10
(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 International
Purchase Agreement or the Related Transactions or the performance by
the Company and its subsidiaries of their obligations hereunder or
under the International Purchase Agreement, the Merger Agreement, the
New Bank Credit Agreement, the Supplemental Indenture or the Dealer
Manager 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 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.
11
(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, issuance or sale of the Securities under this Agreement and
the International Purchase Agreement or the consummation of the
transactions contemplated by this Agreement or the International
Purchase Agreement or the Related Transactions, except (i) 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,
(ii) such as have been obtained under the laws and regulations of
jurisdictions outside the United States in which the Reserved
Securities are offered and (iii) such as will be obtained at or prior
to the Closing Date under Delaware law in connection with the filing of
the certificate of amendment, certificate of merger and certificate of
ownership and merger with the Delaware Secretary of State in connection
with the Merger and the Company's name change.
(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 New Bank Credit Agreement or the Other Secured Agreements,
12
(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 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 issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectuses or (b) the consummation of the
transactions contemplated by this Agreement or the International
Purchase Agreement and the Related Transactions 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
13
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 securities of the Company
registered by the Company under the 1933 Act. 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. No material taxes have been or will be imposed
on the Company, Holding or ▇▇▇▇▇▇▇ in connection with the consummation
of the Reorganization.
(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
14
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 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.
(xxviii) Authority to Consummate Merger and Related
Transactions. The Company and its subsidiaries have, to the extent
applicable, all necessary corporate power and authority to enter into
and perform their respective obligations under the Merger Agreement,
the New Bank Credit Agreement, the
15
Supplemental Indenture and the Dealer Manager Agreement; the execution,
delivery and performance of the Merger Agreement, the New Bank Credit
Agreement, the Supplemental Indenture and the Dealer Manager Agreement,
as applicable, by the Company and such subsidiaries have been duly
authorized, except that the Merger remains subject to the approval of
the shareholders of the Company; the Merger Agreement, the New Bank
Credit Agreement, the Supplemental Indenture and the Dealer Manager
Agreement have been duly authorized and have or prior to the Closing
Time will be executed and delivered by the Company and such
subsidiaries as applicable; and (assuming due authorization, execution
and delivery by each other party thereto other than the Company or any
of its subsidiaries) the Merger Agreement (subject to obtaining the
requisite shareholder approval), the New Bank Credit Agreement, the
Supplemental Indenture and the Dealer Manager Agreement will constitute
valid and binding obligations, as applicable, of the Company and such
subsidiaries, enforceable against the Company and such subsidiaries, as
applicable, in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), except (i) as to the enforcement
of the indemnification provisions of the Dealer Manager Agreement and
(ii) with respect to the New Bank Credit Agreement, except as
enforceability may be limited by other laws and regulations of non-U.S.
jurisdictions.
(xxix) Appraisal Rights. To the knowledge of the Company and
▇▇▇▇▇▇▇, no stockholders of the Company have demanded an appraisal of
their shares as a result of the Merger, and on or prior to the Closing
Time, each outstanding share of the Company's three classes of common
stock which are issued and outstanding on the date hereof will be
converted into and represent the right to receive 12.58392 shares of
Common Stock, except that fractional shares will represent the right to
receive cash at $ per share.
(b) 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 U.S. Representatives or to counsel for the U.S.
Underwriters shall be deemed a joint and several representation and warranty by
the Company and ▇▇▇▇▇▇▇ to each U.S. Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
16
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional shares of Common
Stock at the price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and payable on
the Initial U.S. Securities but not payable on the U.S. 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 U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. 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 U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter bears to the total number of Initial U.S. Securities, subject in
each case to such adjustments as the Global Coordinator in its discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called "Closing Time").
17
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter 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 U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives 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
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives 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 U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
18
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 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 U.S. Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the U.S. Representatives and counsel for
the U.S. Underwriters, 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 U.S. Representatives, without
charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
U.S. Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters 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 U.S. Underwriter, without charge, as many copies of each
preliminary prospectus as such U.S. Underwriter 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 U.S.
Underwriter, without charge, during the period when the U.S. Prospectus
is required to be delivered under the 1933 Act or the Securities
19
Exchange Act of 1934 (the "1934 Act"), such number of copies of the
U.S. Prospectus (as amended or supplemented) as such U.S. Underwriter
may reasonably request. The U.S. Prospectus and any amendments or
supplements thereto furnished to the U.S. Underwriters 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 International 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 U.S.
Underwriters 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 U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters 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 U.S. Underwriters, 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
20
otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectuses under "Use of Proceeds".
(i) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectuses, the Company will not, without
the prior written consent of the Global Coordinator, (i) 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 International 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) any shares of
Common Stock issued in connection with the Reorganization, (F) 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
(G) 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.
21
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the rules and regulations of the Commission
thereunder.
(k) Compliance with NASD Rules. The Company hereby agrees that
it will ensure that the Reserved Securities will be restricted as
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons
will need to be so restricted. At the request of the Underwriters, the
Company will direct the transfer agent to place a stop transfer
restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the
Reserved Securities, the Company agrees to reimburse the Underwriters
for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
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 transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
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
22
and expenses of any transfer agent or registrar for the Securities, (ix) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, (x) the fees and expenses incurred in connection with the listing of
the Securities on the NYSE and (xi) all costs and expenses of the Underwriters,
including the fees and disbursements of Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, in connection with matters related to the Reserved Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5(r) or
Section 9(a)(i) hereof, the Company and ▇▇▇▇▇▇▇ shall reimburse the U.S.
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
Company and ▇▇▇▇▇▇▇ contained in Section 1 hereof or in certificates of any
officer of the Company, ▇▇▇▇▇▇▇ or any subsidiary of the Company 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 reasonable
satisfaction of counsel to the U.S. Underwriters. 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 U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel for the Company, in form and substance satisfactory to counsel
for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S.
23
Underwriters to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably
request.
(c) Opinion of German Counsel for the Company. At Closing
Time, the U.S. Representatives shall have received the favorable
opinion, dated as of Closing Time, of , special German counsel for
the Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the U.S.
Underwriters 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 U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of , special Swiss counsel for the
Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the U.S.
Underwriters 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 U.S. Representatives shall have received the favorable opinion,
dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., in form and
substance satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other
U.S. Underwriters to the effect set forth in Exhibit C hereto and to
such effect as counsel to the U.S. Underwriters may reasonably request.
(f) Opinion of Counsel for U.S. Underwriters. At Closing Time,
the U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters 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
24
opinions of counsel satisfactory to the U.S. Representatives. 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.
(g) 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 U.S. Representatives 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 International 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.
(h) Litigation Certificate. At Closing Time, the U.S.
Representatives 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 U.S. Underwriters to the
effect set forth in Exhibit D.
(i) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the U.S. Representatives shall have received from
KPMG Fides Peat a letter dated such date, in form and substance
satisfactory to the U.S. Representatives, together with signed or
reproduced copies of such letter for each of the other U.S.
Underwriters 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.
(j) Bring-down Comfort Letter. At Closing Time, the U.S.
Representatives 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
25
furnished pursuant to subsection (i) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
(k) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the NYSE, subject only to official
notice of issuance.
(l) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(m) Lock-up Agreements; Registration Rights. At the date of
this Agreement, the U.S. Representatives shall have received an
agreement substantially in the form of Exhibit E hereto signed by the
persons listed on Schedule C hereto. The Company shall have taken all
required action so that no person 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 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.
(n) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the International
Managers shall have purchased the Initial International Securities
under the International Purchase Agreement.
(o) Reorganization. At or prior to the Closing Time, the
Reorganization, as described in all material respects in the
Registration Statement and Prospectuses, as amended or supplemented,
shall have been duly and validly effected and all corporate proceedings
and legal matters incident thereto shall be satisfactory in all
material respects to counsel for the U.S. Underwriters in their
reasonable judgment.
(p) Reliance Letters. At or prior to the Closing Time, the
U.S. Representatives shall have received letters addressed to the U.S.
Representatives, in form and substance reasonably satisfactory to the
U.S. Representatives, permitting the Underwriter to rely on each
opinion of counsel of the Company that is or has been delivered to any
party in connection with any of the New Bank Credit Agreement, the
Supplemental Indenture and the Dealer Manager Agreement or the
consummation of the transactions contemplated thereby.
26
(q) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the U.S. Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
or any subsidiary of the Company hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the
U.S. Representatives 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(g) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for
the Company, in form and substance reasonably satisfactory to
counsel for the U.S. Underwriters, dated such Date of
Delivery, relating to the U.S. 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.
(iii) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. The favorable
opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., dated such Date of
Delivery, in form and substance reasonably satisfactory to
counsel for the U.S. Underwriters and otherwise to the same
effect as the opinion required by Section 5(e) hereof.
(iv) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the
U.S. 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.
(v) Opinion of German Counsel for Company. The favorable
opinion of , special German counsel for the Company, in
form and substance reasonably satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to
the U.S. 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.
27
(vi) Opinion of Swiss Counsel for Company. The favorable
opinion of , special Swiss counsel for the Company, in
form and substance reasonably satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating
to the U.S. 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.
(vii) Bring-down Comfort Letter. A letter from KPMG Fides
Peat, in form and substance satisfactory to the U.S.
Representatives and dated such Date of Delivery, and
substantially in the same form and substance as the letter
furnished to the U.S. Representatives pursuant to Section 5(j)
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 U.S. Underwriters 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 in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
U.S. Representatives and counsel for the U.S. Underwriters.
(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 U.S. Option Securities on a Date of Delivery which is after
the Closing Time, the obligations of the several U.S. Underwriters to
purchase the relevant Option Securities, may be terminated by the U.S.
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1,6,7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. Each of the Company and
Mettler, jointly and severally, agrees to indemnify and hold harmless each U.S.
Underwriter and
28
each person, if any, who controls any U.S. Underwriter 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, arising out of (A) the violation of
any applicable laws or regulations of foreign jurisdictions where
Reserved Securities have been offered and (B) any untrue statement or
alleged untrue statement of a material fact included in the supplement
or prospectus wrapper material distributed in connection with the
reservation and sale of the Reserved Securities or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the
Prospectuses or preliminary prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission or in
connection with any violation of the nature referred to in Section
6(a)(ii)(A) and (B) hereof; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the
Company; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission or in connection with any
violation of
29
the nature referred to in Section 6(a)(ii)(A) and (B) hereof, to the
extent that any such expense is not paid under (i), (ii) or (iii)
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
U.S. Prospectus (or any amendment or supplement thereto) and (b) with respect to
any preliminary prospectus to the extent that any such loss, liability, claim,
damage or expense of such U.S. Underwriter results solely from the fact that
such U.S. Underwriter 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 U.S. 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 U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus that was corrected in the U.S.
Prospectus.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter 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 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 U.S. prospectus or
the U.S. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such U.S.
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on
30
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, each of the Company and Mettler,
jointly and severally, agrees, promptly upon a written request, in writing to
indemnify and hold harmless the U.S. Underwriters from and against any and all
losses, liabilities, claims, damages and expenses incurred by them as a result
of the failure of certain employees of the Company and its subsidiaries and
certain other persons having a business relationship with the Company to pay for
and accept delivery of Reserved Securities which, by the end of the first
business day following the date of this Agreement, were subject to a properly
confirmed agreement to purchase.
31
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and Mettler
on the one hand and the U.S. Underwriters on the other hand from the offering of
the Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and Mettler on the one hand and
of the U.S. Underwriters on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(a) hereof, which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and Mettler on the one
hand and the U.S. Underwriters on the other hand in connection with the offering
of the U.S. 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
U.S. Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company and Mettler on the one hand and the
U.S. Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or Mettler on the one hand or by the U.S.
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or any failure or violation of the nature referred to in Section
6(a)(ii)(A) hereof.
The Company, Mettler and the U.S. Underwriters 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 U.S. Underwriters 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
32
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, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter 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
U.S. Underwriter 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 U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, Mettler or any
subsidiaries of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any U.S. Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company, 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 U.S. Prospectus, any
material adverse change in the
33
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 U.S. Underwriters. If one or
more of the U.S. Underwriters 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 U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 U.S. Securities to be purchased on such date, each of
the non-defaulting U.S. Underwriters 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 U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. 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
34
U.S. Underwriters 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 U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter 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
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
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 "U.S. Underwriter" includes
any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives c/o Merrill ▇▇▇▇▇ at
North Tower, World Financial Center, New York, New York 10281-1201, attention of
, with a copy to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and 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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the U.S. Underwriters, the Company and Mettler 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 U.S. Underwriters, the Company and Mettler 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 U.S.
Underwriters, the Company and Mettler 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
35
from any U.S. Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the U.S. Underwriters, the Company and Mettler in accordance with its
terms.
Very truly yours,
MT INVESTORS INC.
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
By:
--------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
B.T. ALEX. ▇▇▇▇▇ INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
--------------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
37
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriters Securities
------------------------- ------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................................................
B.T. Alex. ▇▇▇▇▇ Incorporated...................................
Credit Suisse First Boston Corporation..........................
▇▇▇▇▇▇▇, Sachs & Co.............................................
------------
Total........................................................... 5,333,334
============
Sch A-1
SCHEDULE B
MT INVESTORS, INC.
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 U.S. Securities to be
paid by the several U.S. Underwriters 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 U.S.
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 U.S. Securities but not payable on the
U.S. Option Securities.
Sch B-1
SCHEDULE C
List of persons and entities
subject to lock-up
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Z.Y. Moh
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
All AEA Investors Inc. shareholder-investors and substantially all other
Existing Stockholders of the Company
Sch C-1
Exhibit A
FORM OF OPINION OF FRIED, FRANK,
HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ TO BE
DELIVERED PURSUANT TO SECTION 5(b)
November , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
BT Alex. ▇▇▇▇▇ Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
BT Alex. ▇▇▇▇▇ International,
a Division of Bankers Trust International PLC
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇▇ Sachs International
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
We are acting as special counsel to ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.,
a Delaware corporation (the "Company"), in connection with the underwritten
public offerings of shares of the Company's Common Stock (the "Securities"),
pursuant to (i) a Purchase Agreement (the "U.S. Purchase Agreement"), dated as
of November , 1997, among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc., a Delaware
corporation ("Mettler"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, BT Alex.
A-1
▇▇▇▇▇ Incorporated, Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇,
Sachs & Co., as representatives of the U.S. Underwriters, and (ii) an
International Purchase Agreement (the "International Purchase Agreement," and
together with the U.S. Purchase Agreement, the "Purchase Agreements"), dated as
of November , 1997, among the Company, Mettler and ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, BT Alex. ▇▇▇▇▇ International, a Division of Bankers Trust
International PLC, Credit Suisse First Boston (Europe) Limited and ▇▇▇▇▇▇▇ Sachs
International, as representatives of the International Managers. This opinion is
being delivered pursuant to Section 5(b) of each of the Purchase Agreements and
simultaneously with the payment by the Underwriters to the Company for the
Securities. Except as provided herein, all capitalized terms used herein which
are defined in the Purchase Agreements have the respective meanings specified
therein. With your permission, all assumptions and statements of reliance herein
have been made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items relied
upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company and its subsidiaries, such certificates of public officials and such
other documents, and (iii) reviewed such information from officers and
representatives of the Company and its subsidiaries and others, in each case, as
we have deemed necessary or appropriate for the purposes of this opinion. In all
such examinations, we have assumed the legal capacity of all natural persons
executing documents, the genuineness of all signatures on original or certified
copies, the authenticity of all original or certified copies and the conformity
to original or certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinions
expressed herein, we have relied upon, and assume the accuracy of, the
statements made in the certificates of officers of the Company and its
subsidiaries delivered to us, the representations and warranties contained in
the Purchase Agreements and certificates and oral or written statements and
other information of or from public officials and officers and representatives
of the Company, its subsidiaries and others, and assume compliance on the part
of all parties to the Purchase Agreements with their covenants and agreements
contained therein. With respect to the opinions expressed in paragraph 3 below,
we have relied solely upon a certificate or certificates of public officials of
such jurisdictions, copies of which have been provided to you. With respect to
the opinion expressed in paragraph 8 below regarding the effectiveness of the
Registration Statement and the absence of any stop orders or proceedings for
that purpose, we are relying upon the oral advice of the staff of the Securities
and Exchange Commission (the "Commission"). Based upon the foregoing, and
subject to the limitations, qualifications and assumptions set forth herein,
A-2
and in reliance, to the extent hereinafter stated, upon the opinion of other
counsel, we are of the opinion that:
1. The Company has been duly incorporated and the Company and
Mettler are validly existing as corporations in good standing under the
laws of the State of Delaware.
2. Each of the Company and Mettler has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under the Purchase Agreements.
3. Each of the Company and Mettler is duly qualified as a
foreign corporation to transact business and is in good standing in the
states listed on Schedule I to this opinion.
4. The authorized capital stock of the Company is as set forth
in the Prospectuses under the caption "Capitalization."
5. The issuance of the Securities pursuant to the Purchase
Agreements has been duly authorized and, when such Securities are
issued and delivered in accordance with the terms of the Purchase
Agreements, such Securities will be validly issued, fully paid and
non-assessable, and the issuance of such Securities will not be subject
to any preemptive rights of stockholders arising under the Delaware
General Corporation Law, the Amended and Restated Certificate of
Incorporation or amended By-laws of the Company or any of the
agreements, contracts or instruments filed as an exhibit to the
Registration Statement.
6. The issuance of the shares of Common Stock in connection
with the Merger (the "Merger Shares") has been duly authorized and
assuming that the shares of common stock of MT Investors were validly
issued, fully paid and non-assessable, when such shares of Common Stock
are issued and delivered in accordance with the terms of the Merger
Agreement, the Merger Shares will be validly issued, fully paid and
non-assessable, and the issuance of the Merger Shares will not be
subject to any preemptive rights of stockholders arising under the
Delaware General Corporation Law, the Amended and Restated Certificate
of Incorporation or amended By-laws of the Company or any of the
agreements, contracts or instruments filed as an exhibit to the
Registration Statement.
A-3
7. Each of the Purchase Agreements has been duly authorized,
executed and delivered by the Company and Mettler.
8. The Registration Statement, [including any Rule 462(b)
Registration Statement,] has been declared effective under the 1933
Act; any required filing of the Prospectuses pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
9. The Registration Statement, [including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable,], the Prospectuses [and each amendment or
supplement to the Registration Statement and the Prospectuses] as of
their respective effective or issue dates (other than the financial
statements, notes and schedules thereto and other financial data
included therein or omitted therefrom, as to which we need express no
opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
10. The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable requirements of
the Delaware General Corporation Law, with any applicable requirements
of the Amended and Restated Certificate of Incorporation and amended
By-laws of the Company and the requirements of the NYSE.
11. The information in the Prospectuses under "Description of
Capital Stock," "Description of Certain Indebtedness" and "Certain
United States Federal Tax Considerations for Non-United States Holders"
and in the Registration Statement under Item 14, in each case to the
extent that such information constitutes matters of law, summaries of
legal matters or documents, has been reviewed by us and is correct in
all material respects.
12. To our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or Mettler is a party, or to which the property of the Company
or Mettler is subject, before or brought by any New York, Delaware or
federal court or New York, Delaware or federal governmental agency or
body, 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
A-4
contemplated in the U.S. Purchase Agreement and the International
Purchase Agreement or the performance by the Company or Mettler of its
obligations thereunder or the Related Transactions.
13. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any New York,
Delaware or federal court or governmental authority or New York,
Delaware or federal agency, is necessary or required in connection with
the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the
Securities except (i) such as have been obtained or as may be required
under the 1933 Act or the 1933 Act Regulations and foreign or state
securities or blue sky laws, (ii) such as have been obtained under the
laws and regulations of jurisdictions outside the United States in
which the Reserved Securities are offered, and (iii) the filing of the
certificate of amendment and the certificate of merger with the
Delaware Secretary of State in connection with the Company's name
change and the Merger.
14. The consummation of the Merger and the execution and
delivery by the Company and Mettler of, and the performance by the
Company and Mettler of their obligations under, the Purchase Agreements
did not and will not (i) contravene any provision of the certificates
of incorporation and bylaws, in each case as amended, as the case may
be, of the Company or Mettler, (ii) contravene any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
listed as an exhibit to the Registration Statement or (iii) violate (x)
any present statute, rule or regulation of any governmental agency or
authority of the United States of America or the State of New York or
Delaware (as it relates to the General Corporation Law of the State of
Delaware) applicable to the Company or any subsidiary, or (y) any
judgment or decree or order of any court or governmental agency or body
of the United States of America or the States of New York or Delaware
(as it relates to the General Corporation Law of the State of Delaware)
known to us; provided, however, that we express no opinion with respect
to any violation, breach or default arising under or based upon any
cross-default provision insofar as such violation relates to a default
under an agreement that is not an exhibit to the Registration
Statement.
15. The Merger Agreement has been duly executed and delivered
by the duly authorized officers of the Company and Holding, as the case
may be, and all corporate actions required to be taken by the Company
and Holding, as the case may be, at or prior to the effective date of
the Merger in connection with the Merger Agreement and the Merger
pursuant to United States Federal and Delaware General Corporation Law
have been duly and validly taken.
A-5
16. Neither the Company nor Mettler is an "investment company"
as such term is defined in the 1940 Act.
In addition, in the course of the preparation by the Company
of the Registration Statement and the Prospectuses, we participated in
conferences with certain of the officers and representatives of, and the
independent public accountants for the Company, at which the Registration
Statement and the Prospectuses were discussed. Between the date of effectiveness
of the Registration Statement and the time of delivery of this letter, we
attended additional conferences with certain of the officers and representatives
of the Company, at which the contents of the Registration Statement and
Prospectuses were discussed to a limited extent. Given the limitations inherent
in the independent verification of factual matters and the character of
determinations involved in the registration process, we are not passing upon or
assuming any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectuses, except
as specified in paragraph 10. Subject to the foregoing and on the basis of the
information gained in the performance of the services referred to above,
including information obtained from officers and other representatives of, and
the independent public accountants for the Company, no facts have come to our
attention that cause us to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectuses as of their
date contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Also, subject to the foregoing, no facts have come to our
attention in the course of proceedings described in the second sentence of this
paragraph that cause us to believe that the Prospectuses, as of the date and
time of delivery of this letter, contain any untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances in which
they were made, not misleading. We express no view or belief, however, with
respect to financial statements, notes or schedules thereto or other financial
data included in or omitted from the Registration Statement or Prospectuses. The
opinions set forth above are subject to the following additional qualifications
and assumptions:
(a) Our opinion is subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting
creditors' rights generally and (ii) general principles of equity
(including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether such principles are
considered in a proceeding at law or equity.
A-6
(b) Our opinion is subject to the effect of, and we express no
opinion with respect to the application of or compliance with, state
securities or Blue Sky laws.
(c) For purposes of paragraphs 13 and 14 above, we have
reviewed only those statutes, rules and regulations that in our
experience are applicable to transactions of the type contemplated by
the Purchase Agreements or for the offering, issuance, sale or delivery
of the Securities or the Merger.
(d) For purposes of the opinion set forth in paragraph 12
above, we have endeavored, to the extent we have believed necessary, to
determine from lawyers currently in our firm who have performed
substantive legal services for the Company and Mettler whether such
services involved substantive attention in the form of legal
representation concerning pending legal proceedings of the nature
referred to in such paragraph 12, and we have not made any review,
search or investigation of public files or records or files or records
of the Company or Mettler, or of their transactions, or any other
investigation or inquiry with respect to such opinion.
The opinions expressed herein are limited to the federal laws
of the United States of America, the General Corporation Law of the State of
Delaware and the laws of the State of New York, as currently in effect. To the
extent such opinion contains assumptions, conditions and limitations, we are
incorporating such assumptions, conditions and limitations herein. We assume no
obligations to supplement this letter if any applicable laws change after the
date hereof or if we become aware of any facts that might change the opinions
expressed herein after the date hereof.
The opinions expressed herein are solely for your benefit and
may not be relied upon in any manner or for any purpose by any other person and
may not be quoted in whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
A-7
Exhibit A
[Officer's Certificate to come]
A-8
Schedule I
[list of jurisdictions to come]
A-9
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]* under laws of , 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 ; 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 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 , 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
----------
* If concept is recognized in local jurisdiction.
B-1
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
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 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) All shares of Class A, Class B and Class C Common Stock of the
Company outstanding immediately prior to the Merger were validly issued, fully
paid and non-assessable.
(ii) To my knowledge, the Company is not in violation of its Amended
and Restated Certificate of Incorporation or amended By-laws.
(iii) 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 New York, Delaware or federal
law to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
C-1
Exhibit D
[Letterhead of MT Investors Inc.]
Form of 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(h) of the U.S. Purchase Agreement (the "U.S. Purchase Agreement"),
dated , among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. ("▇▇▇▇▇▇▇-▇▇▇▇▇▇"),
a Delaware corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, BT Alex. ▇▇▇▇▇ Corporation, Credit Suisse First Boston
Corporation and ▇▇▇▇▇▇▇, Sachs & Co., 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
, 1997, among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, BT Alex. ▇▇▇▇▇ International, A Division of Bankers Trust
International PLC, Credit Suisse First Boston (Europe) Limited and ▇▇▇▇▇▇▇ Sachs
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
D-1
▇▇▇▇▇▇▇-▇▇▇▇▇▇ of its obligations hereunder or thereunder.
D-2
WITNESS the signature of the undersigned this day of November, 1997.
------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
D-3
Exhibit E
[FORM OF LOCK-UP PURSUANT TO SECTION 5(M)]
, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
B.T. ALEX. ▇▇▇▇▇ INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
as Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BT ALEX. ▇▇▇▇▇ INTERNATIONAL A DIVISION OF BANKERS TRUST,
INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
as Representatives of the several International Underwriters
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
MT INVESTORS INC.
▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇-▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: Proposed Public Offering by MT Investors Inc.
(to be renamed ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.)
Dear Sirs:
The undersigned, a stockholder of MT Investors Inc., a Delaware
corporation (the "Company"), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), B.T. Alex. ▇▇▇▇▇
Incorporated, Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇, Sachs & Co.
propose to enter into a U.S. Purchase Agreement (the "U.S. Purchase Agreement")
with the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, BT Alex. ▇▇▇▇▇ International
A Division of Bankers Trust International PLC, Credit Suisse First
E-1
Boston (Europe) Limited and ▇▇▇▇▇▇▇ Sachs International propose to enter into an
International Purchase Agreement (the "International Purchase Agreement") with
the Company, 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 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 180 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"),
E-2
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:
--------------------------------
E-3