Exhibit 1.1
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL INC.
(a Delaware corporation)
[ ] Shares of Common Stock
FORM OF U.S. PURCHASE AGREEMENT
-------------------------------
Dated: [ ], 1998
Table of Contents
U.S. PURCHASE AGREEMENT..........................................................................1
SECTION 1. Representations and Warranties.............................................4
(a) Representations and Warranties by the Company and Mettler..................4
(i) Compliance with Registration Requirements........................4
(ii) Independent Accountants..........................................5
(iii) Financial Statements.............................................5
(iv) No Material Adverse Change in Business...........................5
(v) Good Standing....................................................6
(vi) Good Standing of Subsidiaries....................................6
(vii) Capitalization...................................................7
(viii) Authorization of Agreement.......................................7
(ix) Description of Securities........................................7
(x) Absence of Defaults and Conflicts................................7
(xi) Absence of Labor Dispute.........................................8
(xii) Absence of Proceedings...........................................8
(xiii) Accuracy of Exhibits.............................................9
(xiv) Possession of Intellectual Property..............................9
(xv) Absence of Further Requirements..................................9
(xvi) Possession of Licenses and Permits...............................9
(xvii) Title to Property...............................................10
(xviii) Investment Company Act..........................................10
(xix) Environmental Laws..............................................10
(xx) Registration Rights.............................................11
(xxi) Taxes...........................................................11
(xxii) Accounting Controls.............................................11
(xxiii) Insurance.......................................................12
(xxiv) Stabilization or Manipulation...................................12
(xxv) Certain Relationships...........................................12
(xxvi) No Offering Material............................................12
(xxvii) Suppliers.......................................................12
(b) Representations and Warranties by the Selling Shareholders................12
(c) Officer's Certificates....................................................15
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing...........................15
(a) Initial Securities........................................................15
(b) Option Securities.........................................................15
(c) Payment...................................................................16
(d) Denominations; Registration...............................................17
i
SECTION 3. Covenants of the Company..................................................17
(a) Compliance with Securities Regulations and
Commission Requests.......................................................17
(b) Filing of Amendments......................................................17
(c) Delivery of Registration Statements.......................................18
(d) Delivery of Prospectuses..................................................18
(e) Continued Compliance with Securities Laws.................................18
(f) Blue Sky Qualifications...................................................19
(g) Rule 158..................................................................19
(h) Restriction on Sale of Securities.........................................19
(i) Reporting Requirements....................................................19
SECTION 4. Payment of Expenses.......................................................20
(a) Expenses..................................................................20
(b) Expenses of the Selling Shareholders......................................20
(c) Termination of Agreement..................................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations..............................21
(a) Effectiveness of Registration Statement...................................21
(b) Opinion of Counsel for Company............................................21
(c) Opinion of German Counsel for the Company.................................21
(d) Opinion of Swiss Counsel for the Company..................................21
(e) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq........................................22
(f) Opinion of Counsel for the Selling Shareholders...........................22
(g) Opinion of Counsel for U.S. Underwriters..................................22
(h) Officers' Certificate.....................................................22
(i) Certificate of Selling Shareholders.......................................23
(j) Litigation Certificate....................................................23
(k) Accountant's Comfort Letter...............................................23
(l) Bring-down Comfort Letter.................................................23
(m) Approval of Listing.......................................................23
(n) No Objection..............................................................23
(o) Lock-up Agreements; Registration Rights...................................24
(p) Purchase of Initial International Securities..............................24
(q) Conditions to Purchase of U.S. Option Securities..........................24
(i) Officers' Certificate...........................................24
(ii) Certificate of Selling Shareholder..............................24
(iii) Opinion of Counsel for Company..................................24
(iv) Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq..............................25
(v) Opinion of Counsel for Selling Shareholders.....................25
(vi) Opinion of Counsel for U.S. Underwriters........................25
(vii) Opinion of German Counsel for Company...........................25
(viii) Opinion of Swiss Counsel for Company............................25
(ix) Bring-down Comfort Letter.......................................25
ii
(r) Additional Documents......................................................25
(s) Termination of Agreement..................................................26
SECTION 6. Indemnification...........................................................26
(a) Indemnification of U.S. Underwriters......................................26
(b) Indemnification of Selling Shareholders by the
Company and Mettler.....................................................27
(c) Indemnification of Company, Directors and
Officers and Selling Shareholders.......................................28
(d) Actions against Parties; Notification.....................................28
(e) Settlement without Consent if Failure to Reimburse........................29
(f) Other Agreements with Respect to Indemnification..........................29
SECTION 7. Contribution..............................................................29
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery..........................................................31
SECTION 9. Termination of Agreement..................................................31
(a) Termination; General......................................................31
(b) Liabilities...............................................................31
SECTION 10. Default by One or More of the U.S. Underwriters...........................32
SECTION 11. Default by one or more of the Selling Shareholders........................32
SECTION 12. Notices...................................................................33
SECTION 13. Parties...................................................................33
SECTION 14. GOVERNING LAW AND TIME....................................................34
SECTION 15. Effect of Headings........................................................34
SCHEDULES
Schedule A - List of Underwriters..............................................Sch A-1
Schedule B - List of Selling Shareholders......................................Sch B-1
Schedule C - Shares of Common Stock............................................Sch C-1
Schedule D - List of persons and entities subject to lock-up...................Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel...................................A-1
Exhibit B - Form of Local Counsel Opinion..........................................B-1
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.............................C-1
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Exhibit D - Form of Opinion of Selling Stockholders' Counsel...................... D-1
Exhibit E - Form of Litigation Certificate of the
Chief Financial Officer of the Company..........................................E-1
Exhibit F - Form of Lock-up Letter................................................ F-1
iv
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL INC.
(a Delaware corporation)
[ ] Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
[ ], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BT ALEX. ▇▇▇▇▇
CREDIT SUISSE FIRST BOSTON
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a Delaware corporation (the
"Company"), ▇▇▇▇▇▇▇- ▇▇▇▇▇▇, Inc. ("Mettler") and the persons listed on
Schedule B hereto (the "Selling Shareholders"), confirm their agreement with
▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ and BT Alex. ▇▇▇▇▇, Credit Suisse First Boston Corporation,
▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as representatives (in
such capacity, the "U.S. Representatives"), with respect to (i) the sale by
the Selling Shareholders, 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
Schedules A and B hereto, and (ii) the grant by the Selling Shareholders 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 [ ]
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 and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by the Selling
Shareholders 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 and BT Alex. ▇▇▇▇▇ International, a Division of
Bankers Trust International PLC, Credit Suisse First Boston (Europe) Limited,
▇▇▇▇▇▇▇ Sachs International and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as lead managers
(the "Lead Managers"), and the grant by the Selling Shareholders 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 Selling Shareholders are 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 and the Selling Shareholders understand 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.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333- ) covering
the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and
2
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 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 [ ], 1998 and preliminary International
Prospectus, dated [ ], 1998, respectively, each together with the applicable
Term Sheet and all references in this Agreement to the date of such
Prospectuses shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the 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 ("▇▇▇▇▇").
3
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. Neither of the Prospectuses nor any
amendments or supplements thereto (including any prospectus wrapper),
at the time the Prospectuses or any amendments or supplements thereto
were issued and at the Closing Time (and, if any 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
4
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 involved. The supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. The pro
forma information and the related notes thereto included in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein,
(A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and no material adverse effect on the ability of the
Company or Mettler to enter into this Agreement or the International
Purchase Agreement or to consummate the transactions contemplated in
this Agreement
5
or the International Purchase Agreement (any such material adverse
change or effect, a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(v) Good Standing. The Company and Mettler have been duly
organized and are validly existing as corporations in good standing
under the laws of the State of Delaware and have corporate power and
authority to own, lease and operate their properties and to conduct
their business as described in the Prospectuses and to enter into and
perform their obligations under this Agreement; and the Company and
Mettler are duly qualified as foreign corporations to transact
business and are in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectuses and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except for directors' qualifying
shares or as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each such Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
created pursuant to the Credit Agreement (as defined in the
Registration Statement) or under any local working capital facilities
or interest protection agreements secured under the Credit Agreement
(the "Other Secured Agreements"); and none of the outstanding shares
of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Company's registration
statement on Form S-1 (Registration No. 333-35597) and (b) certain
other subsidiaries which, considered in
6
the aggregate as a single Subsidiary, do not constitute a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company shall be as set forth in the
Prospectuses under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholders, have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company, including the Securities to be purchased by the
Underwriters from the Selling Shareholders, was issued in violation
of the preemptive or other similar rights of any securityholder of
the Company.
(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company and ▇▇▇▇▇▇▇.
(ix) Description of Securities. The Common Stock conforms in
all material respects to all statements relating thereto contained in
the Prospectuses and such description conforms to the rights set
forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being
such a holder.
(x) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or
any subsidiary is subject (collectively, "Agreements and
Instruments"), except for (a) with respect to the Company's
subsidiaries other than the Subsidiaries, such violations that would
not result in a Material Adverse Effect, and (b) such defaults that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the International
Purchase Agreement by the Company or ▇▇▇▇▇▇▇, the consummation by the
Company or ▇▇▇▇▇▇▇ of the transactions contemplated in this Agreement
and the International Purchase Agreement and the transactions
contemplated herein and in the Registration Statement (including the
sale of the Securities), and compliance by the Company and ▇▇▇▇▇▇▇
with their obligations under this Agreement and the International
Purchase Agreement have been
7
duly authorized by all necessary corporate action by the Company or
▇▇▇▇▇▇▇, as the case may be, and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments
(except for (A) such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect or (B) such liens, charges, or encumbrances as are created in
connection with the execution, delivery and performance of the Credit
Agreement or the Other Secured Agreements), nor will such action
result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company or ▇▇▇▇▇▇▇, is imminent, and neither the
Company nor ▇▇▇▇▇▇▇ is aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which,
in either case, might reasonably be expected to result in a Material
Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or ▇▇▇▇▇▇▇, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement
or the International Purchase Agreement or the performance by the
Company and ▇▇▇▇▇▇▇ of their obligations hereunder or under the
International Purchase Agreement, and the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
8
(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.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
▇▇▇▇▇▇▇ of their obligations hereunder, in connection with the
offering or sale of the Securities under this Agreement and the
International Purchase Agreement or the consummation of the
transactions contemplated by this Agreement or the International
Purchase Agreement, except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations and
foreign or state securities or blue sky laws.
(xvi) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them except for such Governmental Licenses the failure of which to
possess would not have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any written notice
of any
9
judicial or administrative proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or as set forth in the Credit Agreement or the Other
Secured Agreements, (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company or any of its subsidiaries or (c) would not have a Material
Adverse Effect; all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectuses, are in full force and
effect; and neither the Company nor any subsidiary has any notice of
any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease except
for such claims as would not singly or in the aggregate result in a
Material Adverse Effect.
(xviii) Investment Company Act. Neither the Company nor
▇▇▇▇▇▇▇ is or upon (a) the sale of the Securities as herein
contemplated or (b) the consummation of the transactions contemplated
by this Agreement or the International Purchase Agreement will be, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, regulation, ordinance, code,
common law or any judicial or administrative interpretation thereof
enforceable at law or in equity, including any applicable judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without
limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products subject to regulation under any environmental law
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of
10
Hazardous Materials subject to regulation under any environmental law
(collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the
knowledge of the Company or ▇▇▇▇▇▇▇, threatened administrative,
regulatory or judicial actions, suits, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the knowledge of the Company or ▇▇▇▇▇▇▇,
there are no events or circumstances that could reasonably be
expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xx) Registration Rights. Except as described in the
Registration Statement and the Prospectuses, no person has
registration rights or other similar rights to have any securities of
the Company registered by the Company under the 1933 Act. Except for
persons whose shares have been included in the Registration Statement
no persons who have registration rights or other similar rights
relating to the Common Stock of the Company have any such rights to
have Common Stock registered pursuant to the Registration Statement
which have not been waived. There are no persons with registration
rights or other similar rights to have any securities registered by
the Company's subsidiaries under the 1933 Act.
(xxi) Taxes. The Company and its subsidiaries have filed all
tax returns that are required to have been filed by them pursuant to
applicable law except insofar as the failure to file such returns
would not result in a Material Adverse Effect, and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company and its subsidiaries, except for such taxes,
if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been provided in
accordance with GAAP, and except for the failure to pay such taxes
which, individually and in the aggregate, would not have a Material
Adverse Effect. The charges, accruals and reserves on the books of
the Company and its subsidiaries in respect of any tax liability for
any years not finally determined are adequate in accordance with GAAP
to meet any assessments or reassessments for additional tax for any
years not finally determined, except to the extent of any inadequacy
that would not result in a Material Adverse Effect.
(xxii) Accounting Controls. The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to
11
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific
authorization and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxiii) Insurance. The Company and its subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in
the same or similar business, and all policies with respect to such
insurance are in full force and effect.
(xxiv) Stabilization or Manipulation. Neither the Company
nor any of its sub sidiaries 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.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally and not jointly represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time, and, if the Selling
Shareholder is selling Option Securities on a Date of Delivery, as of each
such Date of Delivery, and agrees with each Underwriter, as follows:
12
(i) Such Selling Shareholder has reviewed and is familiar
with the Registration Statement and the Prospectuses and the
Prospectuses do not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, provided that the representations and
warranties made in this paragraph (i) shall be only with respect to
the information furnished in writing by or on behalf of Such
Shareholder expressly for use in the Registration Statement (or any
amendment thereto).
(ii) Such Selling Shareholder has full right, power and
authority to execute, deliver and perform its obligations under this
Agreement, the International Purchase Agreement and the Power of
Attorney and Custody Agreement, and to sell, transfer and deliver the
Securities pursuant to this Agreement; and this Agreement, the
International Purchase Agreement and the Power of Attorney and
Custody Agreement have been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder and constitutes a valid
and binding agreement of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general principles
of equity.
(iii) There is no action, suit or proceeding before or by
any government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of such Selling
Shareholder, threatened, to which such Selling Shareholder is or
would be a party or of which the property of such Selling Shareholder
is or may be subject, that (i) seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the sale of Securities by such
Selling Shareholder or any of the other transactions contemplated
hereby or (ii) questions the legality or validity of any such
transactions or seeks to recover damages or obtain other relief in
connection with any such transactions.
(iv) No filing, authorization, approval, consent, license,
order, registration or qualification of or with any government,
governmental instrumentality or court (other than under the 1933 Act
and the 1933 Act Regulations and the securities or blue sky laws of
the various states in connection with the sale of the Securities),
domestic or foreign, is required by reason of facts specifically
pertaining to such Selling shareholder or its legal or regulatory
status in connection with the due authorization, execution and
delivery by such Selling Shareholder of this Agreement, the
International Purchase Agreement or the Power of Attorney and Custody
Agreement and the valid sale and delivery of the Securities to be
sold by such Selling Shareholder hereunder and thereunder.
(v) The execution, delivery and performance of this
Agreement, the International Purchase Agreement and the Power of
Attorney and Custody Agreement by such Selling
13
Shareholder, the sale of the Securities by such Selling Shareholder
hereunder and thereunder, the consummation by such Selling
Shareholder of the transactions herein and therein contemplated and
the compliance by such Selling Shareholder with all the provisions of
this Agreement, the International Purchase Agreement and the Power of
Attorney and Custody Agreement will not result in a violation of the
charter or bylaws of such Selling Shareholders which are corporations
or the partnership agreement or certificate of limited partnership,
if applicable, of such Selling Shareholders which are partnerships
and will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
material agreement or instrument to which such Selling Shareholder is
a party or by which such Selling Shareholder is bound, nor will such
action result in any violation of the provisions of any statute
relating to such Selling Shareholders or its legal or regulatory
status or any judgment, order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Shareholder.
(vi) Such Selling Shareholder has, and will at the Closing
Time have, and, if such Selling Shareholder is selling Option Shares
on a Date of Delivery, will on the Date of Delivery have, valid and
marketable title to the Securities to be sold by the Selling
Shareholder pursuant to this Agreement and the International Purchase
Agreement, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; and, at the Closing
Time and, if such Selling Shareholder is selling Option Shares on a
Date of Delivery, at the Date of Delivery, upon delivery of the
Securities to be sold by such Selling Shareholder and payment of the
purchase price therefor as contemplated in this Agreement and the
International Purchase Agreement, each of the Underwriters will
receive good and marketable title to the Securities purchased by it
from such Selling Shareholder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(vii) Certificates for all of the Securities to be sold by
such Selling Shareholder pursuant to this Agreement and the
International Purchase Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been placed in
custody with the Custodian for delivery to the U.S. Underwriters
pursuant to this Agreement and the International Managers pursuant to
the International Purchase Agreement.
(viii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock; and such Selling
Shareholder has not distributed and will not distribute any
prospectus (as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the
Securities other than any preliminary prospectus filed with the
14
Commission or the Prospectuses or other material permitted by the
1933 Act or the 1933 Act Regulations.
(ix) Except as described in the Registration Statement and
the Prospectuses, neither such Selling Stockholder nor any of its
affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning
of Article I, Section 1(m) of the By-laws of the National Association
of Securities Dealers, Inc.), any member firm of the National
Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company, ▇▇▇▇▇▇▇ or any of the Company's subsidiaries delivered to the
Global Coordinator, the 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; and any Certificate signed by or on behalf of the Selling
Shareholders as such and delivered to the representatives or to counsel for
Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriters as
to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Selling Shareholder, severally and not jointly, agrees to sell to
each U.S. Underwriter, severally and not jointly, and each U.S. Underwriter,
severally and not jointly, agrees to purchase from each Selling Shareholder,
at the price per share set forth in Schedule C, that proportion of Initial
U.S. Securities set forth in Schedule B opposite the name of such Selling
Shareholder which 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 bears to the total
number of Initial U.S. Securities, subject, in each case, to such adjustments
among the U.S. Underwriters as the U.S. Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional
shares.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Shareholders, acting severally and
not jointly, hereby grant an option to the U.S. Underwriters, severally and
not jointly, to purchase up to an additional [ ] shares of Common Stock, as
set forth in Schedule B, at the price per share set forth in Schedule C, less
an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial 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
15
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 Selling Shareholders 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
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by the Global Coordinator, the Company and the Selling
Shareholders, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Global Coordinator and the Selling Shareholders
(such time and date of payment and delivery being herein called "Closing
Time").
In addition, in the event that any or all of the 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, the Company and the Selling
Shareholders, on each Date of Delivery as specified in the notice from the
Global Coordinator to the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholders' Power of Attorney and Custody
Agreement, as the case may be, against delivery to the 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.
16
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
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to
the Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Global Coordinator or counsel for the U.S. Underwriters shall object.
17
(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 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.
18
(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
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) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of or
otherwise dispose or transfer any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder or under
the 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) the
issuance of options under the Company's stock option plan and the exercise by
the Company's employees of their rights relating thereto or (F) the filing of
a registration statement on Form S-8 under the 1933 Act relating to Common
Stock pursuant to the Company's stock option plan.
(i) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required
19
to be filed with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the rules and regulations of the
Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and ▇▇▇▇▇▇▇, jointly and severally, will
pay all expenses incident to the performance of their obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, including any stock or other transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Securities
to the Underwriters and the transfer of the Securities between the U.S.
Underwriters and the International Managers, (iv) the fees and disbursements
of the Company's and the Selling Shareholder's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto (such fees and expenses of counsel not to
exceed $5,000.00), (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheets and of the Prospectuses
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities and (x) the fees and
expenses incurred in connection with the listing of the Securities on the
NYSE.
(b) Expenses of the Selling Shareholders. Except as provided in
Section 4(a) above, the Selling Shareholders, severally and not jointly, will
pay all expenses incident to the performance of their respective obligations
under, and the consummation of the transactions contemplated by this
Agreement, including any stamp duties, capital duties and stock transfer
taxes, if any, payable upon the sale of the Securities to the U.S.
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters.
(c) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5(s) or
Section 9(a)(i) or Section 11 hereof, the Company and ▇▇▇▇▇▇▇ shall reimburse
the 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.
20
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 the Selling Shareholders contained in Section 1 hereof or
in certificates of any officer of the Company, ▇▇▇▇▇▇▇ or any subsidiary of
the Company or on behalf of any Selling Shareholder delivered pursuant to the
provisions hereof, to the performance by the Company and ▇▇▇▇▇▇▇ of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the 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 and the Selling Shareholders, in form and substance satisfactory to
counsel for the U.S. Underwriters, together with signed or reproduced copies
of such letter for each of the other U.S. 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 Bruckhaus ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 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 Pestalozzi ▇▇▇▇▇ & ▇▇▇▇▇, 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
21
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 further effect as counsel to the
U.S. Underwriters may reasonably request.
(f) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated as
of Closing Time, of counsel for each of the Selling Shareholders listed on
Schedule E hereto, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit D hereto and
to such further effect as counsel to the Underwriters may reasonably request
(g) 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 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.
(h) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
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,
22
(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.
(i) Certificate of Selling Shareholders. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect
that (i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with the
same force and effect as though expressly made at and as of Closing Time and
(ii) each Selling Shareholder has complied in all material respects with all
agreements and all conditions on its part to be performed under this Agreement
at or prior to Closing Time.
(j) 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 E.
(k) 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.
(l) 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 furnished pursuant to subsection (k) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(m) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the NYSE.
(n) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
23
(o) 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 F hereto signed by the persons listed on
Schedule D hereto. The Company has shall have taken all required action so
that no person (other than persons whose shares are included in the
Registration Statement) who has registration rights or other similar rights
relating to Common Stock of the Company to have Common Stock registered
pursuant to the Registration Statement shall be permitted to exercise such
rights; and no such person who has registration rights or other similar rights
relating to the Common Stock of the Company to have Common Stock registered
pursuant to the Registration Statement shall have exercised such rights (other
than persons whose shares are included in the Registration Statement).
(p) Purchase of Initial 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.
(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 and the Selling Shareholders
contained herein and the statements in any certificates furnished by the
Company, any subsidiary of the Company or the Selling Shareholders hereunder
shall be true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the 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(h)
hereof remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholder. A certificate,
dated such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(i) remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion
of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company and the Selling Shareholders, in form and substance
reasonably satisfactory to counsel for the 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.
24
(iv) 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.
(v) Opinion of Counsel for Selling Shareholders. The
favorable opinion of counsel for each of Selling Shareholders listed
on Schedule E hereto, 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.
(vi) 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.
(vii) Opinion of German Counsel for Company. The favorable
opinion of Bruckhaus ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, special German counsel for
the Company, in form and substance reasonably satisfactory to counsel
for the 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.
(viii) Opinion of Swiss Counsel for Company. The favorable
opinion of Pestalozzi ▇▇▇▇▇ & ▇▇▇▇▇, special Swiss counsel for the
Company, in form and substance reasonably satisfactory to counsel for
the 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.
(ix) 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(l) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(r) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the 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 and the Selling
Shareholders in connection with the sale
25
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 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, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
26
governmental agency or body, commenced or threatened, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the 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.
Each Selling Shareholder agrees, severally and not jointly,
to indemnify and hold harmless each U.S. Underwriter and 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, the Company, its directors, its officers
who sign the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
to the same extent as the foregoing indemnity from the Company and Mettler to
each U.S. Underwriter; provided however, that with respect to each Selling
Shareholder, the indemnification provision in the paragraph shall be only with
respect to the information furnished in writing by or on behalf of such
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), including Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or U.S.
Prospectus (or any amendment or supplement thereto); and provided, further,
that the aggregate liability of any Selling Shareholder pursuant to this
paragraph shall be limited to the net proceeds recovered by such Selling
Shareholder from the Securities purchased by the Underwriters from such
Selling Shareholder pursuant to this Agreement and the International Purchase
Agreement; and provided further, that no Selling Shareholder shall be liable
for any untrue statement, omission or alleged omission of any other Selling
Shareholder.
(b) Indemnification of Selling Shareholders by the Company and
Mettler. The Company and Mettler, jointly and severally, agree to indemnify
and hold harmless each of the Selling Shareholders and each person, if any,
who controls any Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent that the Company and
Mettler have agreed to indemnify and hold harmless each U.S. Underwriter
27
pursuant to the preceding paragraph; provided, however, the Company and
Mettler shall not be liable under this paragraph to the extent any loss,
liability, claim, damage or expense described in the preceding paragraph
arises out of or is based upon an untrue statement, alleged untrue statement,
omission or alleged omission based upon information relating to such Selling
Shareholder expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the U.S. Prospectus (or any
amendment or supplement thereto).
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. 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, and each Selling Shareholder and each person, if any, who controls any
Selling Shareholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary 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).
(d) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Sections
6(b) and 6(c) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which
28
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.
(e) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(f) Other Agreements with Respect to Indemnification. The provisions
of this Section shall not affect any agreement among the Company, Mettler and
the Selling Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company, Mettler and the Selling Shareholders on the one hand and the 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, Mettler and the Selling Shareholders on the one
hand and of the U.S. Underwriters on the other hand in connection with the
statements or omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, Mettler and the
Selling Shareholders on the one hand and the 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 Selling
Shareholders 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
29
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, Mettler and the Selling
Shareholders 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, Mettler
and the Selling Shareholders 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.
The Company, Mettler, the Selling Shareholders 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 above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the U.S.
Securities purchased from such Selling Stockholder and (ii) no 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 or any Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Shareholder, as the case may be.
The U.S. Underwriters' respective obligations to
30
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.
The provisions of this Section shall not affect any agreement among
the Company, Mettler and the Selling Shareholders with respect to
contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, Mettler, any
subsidiaries of the Company or the Selling Shareholders submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, Mettler or the Selling
Shareholders, and shall survive delivery of the Securities to the U.S.
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time
at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is
given in the U.S. Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there
has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to
market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the NYSE, or if trading generally on
the American Stock Exchange, the NYSE or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority,
or (iv) if a banking moratorium has been declared by either Federal, New York
or Swiss authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6 and 7 shall survive such termination and remain in full force
and effect.
31
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 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 (i) the U.S.
Representatives or (ii) any Selling Shareholder shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "U.S. Underwriter" includes any person
substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Default by one or more of the Selling Shareholders. (a)
If a Selling Shareholder shall fail at Closing Time or at a Date of Delivery
to sell and deliver the number of Securities which such Selling Shareholders
are obligated to sell hereunder, and the remaining Selling Shareholders do not
exercise the right hereby granted to increase, pro rata or otherwise, the
number of Securities to be sold by them hereunder to the total number to be
sold by all Selling Shareholders as set forth in Schedule B hereto, then the
U.S. Underwriters may, at option of the U.S. Representatives, by notice from
the U.S. Representatives to the Company and the
32
non-defaulting Selling Shareholders, either (i) terminate this Agreement
without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect
or (b) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section 11 shall relieve any Selling Shareholder so defaulting from liability,
if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to
in this Section 11, each of the U.S. Representatives. the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in
any other documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the 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 Syndicate Operations, with a copy to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; notices
to the Company and Mettler shall be directed to the Company at ▇▇▇▇▇▇▇-▇▇▇▇▇▇
International Inc., Im Langacher, ▇.▇. ▇▇▇ ▇▇-▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and notices to the Selling Shareholders shall be
delivered to AEA Investors Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the U.S. Underwriters, the Company, Mettler and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the U.S. Underwriters, the Company, Mettler and the
Selling Shareholders and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the U.S. Underwriters, the Company, Mettler and
the Selling Shareholders and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any U.S. Underwriter shall be deemed to be a successor by
reason merely of such purchase.
33
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the U.S.
Underwriters, the Company, Mettler and the Selling Shareholders in accordance
with its terms.
Very truly yours,
▇▇▇▇▇▇▇-▇▇▇▇▇▇ INTERNATIONAL
INC.
By:
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
By:______________________________
Name:
Title:
EACH OF THE SELLING
SHAREHOLDERS LISTED ON
SCHEDULE B HERETO
By:______________________________
As Attorney-in-Fact acting on behalf of the
Selling Shareholders named in Schedule B
hereto
34
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BT ALEX. ▇▇▇▇▇
CREDIT SUISSE FIRST BOSTON
▇▇▇▇▇▇▇, 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.
35
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
----------------------- -----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.........................................................
BT Alex. ▇▇▇▇▇
Credit Suisse First Boston
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Total..................................................................................
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be Sold
--------------------- ------------------------
Sch B-1
SCHEDULE C
Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $ [ ].
2. The purchase price per share for the 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-2
SCHEDULE D
List of persons and entities
subject to lock-up
Sch D-1
SCHEDULE E
List of Selling Stockholders
delivering opinions pursuant
to Sections 5(f) and 5(q)(v)
Sch E-1
Exhibit A
FORM OF OPINION OF FRIED, FRANK,
HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ TO BE
DELIVERED PURSUANT TO SECTION 5(b)
[TO COME]
A-1
Exhibit B
FORM OF LOCAL COUNSEL OPINION TO BE DELIVERED PURSUANT
TO SECTIONS 5(c) AND (d)
i Each of [names of local subsidiaries] (collectively, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation [in good standing]1 under laws of |X|, and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectuses; all of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to our knowledge, is owned by |X|; to our
knowledge, none of the outstanding shares of capital stock of any Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary arising under the laws of |X| for the
charter or by-laws of such Subsidiary.
ii To our knowledge, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or any of the
Subsidiaries is a party, or to which the property of the Company or any of the
Subsidiaries is subject, before or brought by any court, governmental agency
or body in |X|, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the U.S.
Purchase Agreement and the International Purchase Agreement or the performance
by the Company or Mettler of its obligations thereunder.
iii The execution, delivery and performance of the U.S. Purchase
Agreement and the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the International
Purchase Agreement and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use Of
Proceeds"), and the compliance by the Company, Holdings, and Mettler with
their respective obligations under the U.S. Purchase Agreement and the
International Purchase Agreement, do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under, or result in the creation or imposition of any
Liens upon any property or assets of any Subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, known to us, to which a Subsidiary is a
party or by which any of them may be bound, or to which any of the property or
assets of the Subsidiaries is subject (except for Liens under the Credit
Agreement and the Working Capital Facilities and such conflicts, breaches or
defaults or liens, charges or encumbrances
--------
1 If concept is recognized in local jurisdiction.
B-1
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
|X| having jurisdiction over the Subsidiaries or any of their respective
properties, assets or operations.
B-2
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ. TO BE
DELIVERED PURSUANT TO SECTION 5(E)
(i) To my knowledge, the Company is not in violation of its Amended
and Restated Certificate of Incorporation or amended By-laws.
(ii) To my knowledge, there are no persons with registration rights
or other similar rights arising under the Amended and Restated Certificate of
Incorporation or amended By-laws of the Company or the corporation laws of the
State of New York, Delaware General Corporation Law or United States federal
securities laws to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act, except
for persons who have waived such rights or whose shares are included in the
Registration Statement.
C-1
Exhibit D
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER(S)
TO BE DELIVERED PURSUANT TO SECTION 5(f)
[TO COME]
D-1
Exhibit E
[Letterhead of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.]
Litigation Certificate
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, hereby certifies that
he is the Chief Financial Officer of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a
Delaware corporation (the "Company"), and that, as such, he is authorized to
execute and deliver this Certificate on behalf of the Company and, with
reference to the Section 5(j) of the U.S. Purchase Agreement (the "U.S.
Purchase Agreement"), dated o, among the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
("▇▇▇▇▇▇▇-▇▇▇▇▇▇"), a Delaware corporation, the Selling Shareholders listed in
Schedule B thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, [ ], as representatives of the underwriters listed in Schedule A
to the U.S. Purchase Agreement, and Section 5[(h)] of the International
Purchase Agreement (the "International Purchase Agreement" and together with
the U.S. Purchase Agreement, the "Purchase Agreements"), dated o, 1998, among
the Company, ▇▇▇▇▇▇▇-▇▇▇▇▇▇, the Selling Shareholders listed in Schedule [ ]
thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, [
], as lead managers to the underwriters listed in Schedule A to the
International Purchase Agreement, further certifies, represents and warrants
on behalf of the Company as follows (each capitalized term used herein without
definition having the same meaning specified in the Purchase Agreements):
(a) to the best of his knowledge, based upon certifications made by
officers of the Company and its subsidiaries in the form attached
hereto as Exhibit A, the undersigned has set forth in Exhibit B
attached hereto all actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency
or body, domestic or foreign, pending or threatened against or
affecting the Company or any of its subsidiaries, at the Closing
Time, where the maximum level of liability is equal to or greater
than $250,000; and
(b) further certifies, represents and warrants on behalf of the
Company that none of such actions, suits, proceedings, inquiries or
investigations set forth in Exhibit B would reasonably be expected to
have a Material Adverse Effect or would reasonably be expected to
materially or adversely affect the property or assets of the Company
or its subsidiaries or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the
Company or ▇▇▇▇▇▇▇-▇▇▇▇▇▇ of its obligations hereunder or thereunder.
E-1
WITNESS the signature of the undersigned this day of [ ],1998.
------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
E-2
Exhibit F
[FORM OF LOCK-UP PURSUANT TO SECTION 5(o)]
, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
BT ALEX. ▇▇▇▇▇
CREDIT SUISSE FIRST BOSTON
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
as Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
A DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several International Underwriters
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.
▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇-▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Re: Proposed Public Offering ▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc.
Dear Sirs:
The undersigned, a [stockholder] [and an officer and/or director] of
▇▇▇▇▇▇▇-▇▇▇▇▇▇ International Inc., a Delaware corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), [ ] propose to enter into a U.S.
Purchase Agreement (the "U.S. Purchase Agreement") with the Company and the
Selling Shareholders, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, [ ]
propose to enter into an International
F-1
Purchase Agreement (the "International Purchase Agreement") with the Company
and the Selling Shareholders, each providing for the public offering (the
"Offerings") of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder [and an
officer and/or director] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the undersigned agrees with each underwriter to be named in the U.S. Purchase
Agreement or the International Purchase Agreement that, during a period of 90
days from the date of the U.S. Purchase Agreement, the undersigned will not,
without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any shares of the
Company's Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock (except through gifts to persons, trusts or other
entities who agree in writing to be bound by the restrictions of this letter),
or file any registration statement under the Securities Act of 1933, as
amended, with respect to any of the foregoing, or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise; provided, however,
that (i) the Company may file a registration statement on Form S-8 under the
Securities Act of 1933 relating to Common Stock of the Company issued pursuant
to the Company's stock option plan (the "Stock Plan"), and (ii) employees of
the Company may exercise rights to acquire Common Stock pursuant to the Stock
Plan.
Sincerely,
If Individual:
Print Name
Signature
If Corporation, Partnership or Trust:
[print or type name of entity]
By:
Name:
Title:
F-2