EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
4,350,000 AMERICAN DEPOSITARY SHARES REPRESENTING
435,000 BEARER ORDINARY SHARES
INTERSHOP COMMUNICATIONS
AKTIENGESELLSCHAFT
UNDERWRITING AGREEMENT
March ___, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. INTERSHOP Communications Aktiengesellschaft, a company
organized under the laws of the Federal Republic of Germany ("COMPANY"),
proposes to issue and sell 4,350,000 of its American Depositary Shares ("FIRM
SECURITIES"), each ADS (collectively, "ADSs") representing 0.1 of the Company's
Bearer Ordinary Shares, no par value ("SECURITIES"). The ADSs purchased by the
Underwriters will be evidenced by American Depositary Receipts ("ADRs") to be
issued pursuant to a Deposit Agreement, dated as of ____________ (the "DEPOSIT
AGREEMENT"), to be entered into by and among the Company, Citibank, N.A., as
depositary (the "DEPOSITARY"), and all holders from time to time of the ADRs.
Pursuant to Article ___ of the Company's Articles of Association
(Satzung), the Management Board (VORSTAND) of the Company, is authorized, with
the prior consent of the Supervisory Board (AUFSICHTSRAT), to increase the
stated share capital of the Company on one or more occasions by up to EUR ___
until _____ (the "AUTHORISED CAPITAL"). The increase in the stated share capital
is to be effected by the issuance of new shares against cash contributions.
Under certain circumstances, the Management Board of the Company is authorized
to exclude pre-emption rights of the shareholders.
On , 2000, the Management Board of the Company resolved to increase the
stated share capital of the Company by making use of the Authorised Capital by
up to EUR 4,350,000 to EUR the ("CAPITAL INCREASE") by issuing up to 435,000 new
Securities (the "NEW SHARES"). The New Shares are to be issued at an issue price
(AUSGABEBETRAG) of EUR 1, per New Share (the "ISSUE PRICE"). The Supervisory
Board approved the resolution of the Management Board on , 2000.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the ("EXISTING SHAREHOLDER") proposes to grant to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
65,000 additional existing Securities ("ADDITIONAL SHARES"), by way of a
securities loan. The Underwriters may require the Company to issue up to 65,000
additional new Securities (the "ADDITIONAL NEW SHARES") from the Authorised
Capital under exclusion of the shareholders' pre-emptive rights in order to
cover over-allotments. The Firm Securities and the
1
Additional New Shares are herein collectively called the "OFFERED SECURITIES."
Whenever computations are contemplated herein that involve both numbers of ADSs
and numbers of shares of Securities in ordinary form, they shall be made on a
consistent basis, by first converting the number of ADSs into the number of
shares of Securities in ordinary form they represent.
As part of the offering contemplated by this Agreement, U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. (the "DESIGNATED UNDERWRITER") has agreed to reserve out of
the Firm Securities purchased by it under this Agreement, up to 250,000 ADSs,
for sale to the Company's directors, officers, employees and other parties
associated with the Company (collectively, "PARTICIPANTS"), as set forth in the
Prospectus (as defined herein) under the heading "Underwriting" (the "DIRECTED
SHARE PROGRAM"). The Firm Securities to be sold by the Designated Underwriter
pursuant to the Directed Share Program (the "DIRECTED SHARES") will be sold by
the Designated Underwriter pursuant to this Agreement at the public offering
price. Any Directed Shares not orally confirmed for purchase by a Participant by
the end of the business day on which this Agreement is executed will be offered
to the public by the Underwriters as set forth in the Prospectus.
The Company and the Existing Shareholder hereby agree with the several
Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE EXISTING
SHAREHOLDER.
(a) The Company represents and warrants to, and agrees with,
the several Underwriters that:
(i) A registration statement (No. 333-32034) on Form
F-1 relating to the Offered Securities in ordinary form, including a form of
prospectus, has been filed with the Securities and Exchange Commission
("COMMISSION") and either (A) has been declared effective under the Securities
Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be
amended by amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating
to the Offered Securities in ordinary form may have been filed with the
Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and the Offered
Securities in ordinary form will all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule 462(b)
and will become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed and the
Company does not propose to amend it, and if any post-effective amendment to
either such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c) ("RULE
462(c)") under the Act or, in the case of the additional registration statement,
Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to
the initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (A) if
the Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c), or
(B) if the Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such amendment
or post-effective amendment, as the case may be, is declared effective by the
2
Commission. If an additional registration statement has not been filed prior to
the execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to
such additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule 462(b).
"EFFECTIVE DATE" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective Time,
including all information contained in the additional registration statement (if
any) and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT." The additional
registration statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT." The Initial
Registration Statement and the Additional Registration Statement are herein
referred to collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT." The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter referred to as
the "PROSPECTUS." No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registra-
tion Statement is prior to the execution and delivery of this Agreement: (A) on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of the Act
and the rules and regulations of the Commission ("RULES AND REGULATIONS") and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will conform, in
all respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(C) on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of any Additional Registration Statement is prior to the
execution and delivery of this Agreement, each such Additional Registration
Statement conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of any
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the Effective Time
of the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will conform in
all respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(b) hereof.
(iii) A registration statement on Form F-6
(No. 333- ) relating to the ADSs has been filed with the Commission (such
registration statement, including all exhibits thereto, as amended at the time
such registration statement becomes effective, being hereinafter called the "ADS
REGISTRATION STATEMENT"); the ADS Registration Statement, as of its effective
date, complied or will comply, and each amendment or supplement thereto, when it
is filed with the Commission or becomes
3
effective, as the case may be, will comply, in all material respects, with the
applicable requirements of the Act and the Rules and Regulations, and did not or
will not, as of its effective date, contain any 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.
(iv) The Company is a stock corporation
(Aktiengesellschatt) duly registered with the Commercial Register in Frankfurt
am Main, Germany, and is validly existing and in good standing under the laws of
the Federal Republic of Germany, with corporate power and authority under such
laws to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except to the extent the failure to be so qualified would not have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(v) Each subsidiary of the Company has been duly
organized and is validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority under such
laws to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, except to the extent the failure to be so qualified would not
have a Material Adverse Effect; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects
(vi) The Offered Securities, including those
represented by the ADSs, and all other outstanding shares of capital stock of
the Company have been duly authorized; all outstanding shares of capital stock
of the Company are, and, when the Offered Securities have been delivered and
paid for in accordance with this Agreement on each Closing Date (as defined
below), such Offered Securities, including those represented by the ADSs, will
have been, validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the shareholders of the
Company have no preemptive rights with respect to the Securities, including
those represented by the ADSs, other than rights that have been waived or
otherwise extinguished with respect to the Offered Securities.
(vii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, when duly and validly authorized,
executed and delivered by the Depositary, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in accordance
with its terms and subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; upon due
issuance by the Depositary of ADRs evidencing ADSs against the deposit of
Securities in respect thereof in accordance with the Deposit Agreement, such
ADRs will be duly and validly issued and the holders thereof will be entitled to
the rights specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform to the descriptions thereof contained in the
Prospectus.
(viii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(ix) There are no contracts, agreements or under-
standings between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered
pursuant to a Registration
4
Statement or the ADS Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Act.
(x) The ADSs have been approved for listing on
The Nasdaq Stock Market's National Market subject to notice of issuance, and the
Offered Securities in ordinary form, including those deposited in respect of
ADSs, have been approved for listing/quotation on the Neuer Markt of the
Frankfurt Stock Exchange.
(xi) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by the Deposit Agreement or
this Agreement in connection with the issuance and sale of the Offered
Securities by the Company, including the deposit of any Securities represented
by the ADSs with the Depositary and the issuance of the ADRs evidencing the
ADSs, except such as have been obtained and made under the Act and such as may
be required under state securities laws.
(xii) Except as disclosed in the Prospectus, under
current laws and regulations of the Federal Republic of Germany and any
political subdivision thereof, all dividends and other distributions declared
and payable on the Offered Securities, including those represented by the ADSs,
may be paid by the Company to the holder thereof in United States
dollars/Deutsche Marks/Euros that may be converted into foreign currency and
freely transferred out of the Federal Republic of Germany and all such payments
made to holders thereof or therein who are non-residents of the Federal Republic
of Germany will not be subject to income, withholding or other taxes under laws
and regulations of the Federal Republic of Germany or any political subdivision
or taxing authority thereof or therein and will otherwise be free and clear of
any other tax, duty, withholding or deduction in the Federal Republic of Germany
or any political subdivision or taxing authority thereof or therein and without
the necessity of obtaining any governmental authorization in the Federal
Republic of Germany or any political subdivision or taxing authority thereof or
therein.
(xiii) The execution, delivery and performance of
the Deposit Agreement and this Agreement, and the issuance and sale of the
Offered Securities, including the deposit of any Securities represented by the
ADSs with the Depositary and the issuance of the ADRs evidencing the ADSs, (A)
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, (B) will not result in a breach or violation of any agreements or
instruments filed as exhibits to the Registration Statement pursuant to item
601(b)(10) of Regulation S-K, which agreements or instruments represent all
material agreements or instruments to which the Company or any subsidiary is
subject or bound, or (C) will not result in a breach or violation of the charter
or by-laws of the Company or any such subsidiary, and the Company has full power
and authority to authorize, issue and sell the Offered Securities, including the
ADSs, as contemplated by the Deposit Agreement and this Agreement.
(xiv) This Agreement has been duly authorized,
executed and delivered by the Company.
(xv) Except as disclosed in the Prospectus, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them;
and except as disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(xvi) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to the revocation
5
or modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(xvii) No labor dispute with the employees of
the Company or any of its subsidiaries that might have a Material Adverse Effect
exists or, to the knowledge of the Company, is imminent.
(xviii) Except as disclosed in the Prospectus, the
Company and its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business
now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect.
(xix) Except as disclosed in the Prospectus, neither
the Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xx) There are no pending actions, suits or proceed-
ings against or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to
perform its obligations under the Deposit Agreement or this Agreement, or which
are otherwise material in the context of the sale of the Offered Securities; and
no such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xxi) The financial statements included in each
Registration Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the schedules included in each
Registration Statement present fairly the information required to be stated
therein.
(xxii) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(xxiii) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxiv) Furthermore, the Company represents and
warrants to the Underwriters that (A) the Registration Statement, the Prospectus
and any preliminary prospectus comply,
6
and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that (B) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
(xxv) The Company has not offered, or caused the
Underwriters to offer, any offered Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence (A) a
customer or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company or (B) a trade journalist or publication to
write or publish favorable information about the Company or its products.
(xxvi) The Company (A) has notified each executive
officer, each member of the Management Board, each member of the Supervisory
Board and ▇▇▇▇▇▇ Fassauerholder that pursuant to the Lock-up Agreements (defined
below), none of the shares held by such persons or entities may be sold or
otherwise transferred or disposed of for a period of 90 days after the date of
the initial public offering of the Offered Securities and (B) has imposed a
stop-transfer instruction with the Company's transfer agent in order to enforce
the foregoing lock-up provision imposed pursuant to the Option Plans.
(xxvii) All outstanding Securities, and all
securities convertible into or exercisable or exchangeable for Securities, that
are held by the Company's executive officers, members of the Management Board,
members of the Supervisory Board or ▇▇▇▇▇▇ Fassauerholder are subject to valid
and binding agreements having substantially the form of EXHIBIT A (collectively,
"LOCK-UP AGREEMENTS") that restrict the holders thereof from selling, making any
short sale of, granting any option for the purchase of, or otherwise
transferring or disposing of, any of such Securities, or any such securities
convertible into or exercisable or exchangeable for Securities, for a period of
90 days after the date of the Prospectus without the prior written consent of
Credit Suisse First Boston Corporation ("CSFBC").
(b) The Existing Shareholder represents and warrants to, and
agrees with, the several Underwriters that:
(i) The Existing Shareholder has and on each Closing
Date hereinafter mentioned will have valid and unencumbered title to the
Additional Shares to be delivered by the Existing Shareholder on such Closing
Date and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Additional Shares to be delivered by the
Existing Shareholder on such Closing Date hereunder; and upon the delivery of
and payment for the Additional Shares on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Additional Shares
to be delivered by the Existing Shareholder on such Closing Date.
(ii) If the Effective Time of the Initial Registra-
tion Statement is prior to the execution and delivery of this Agreement: (A) on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of the Act
and the Rules and Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (B) on the Effective
Date of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
7
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. The two preceding sentences apply only to the
extent that any statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by such
Existing Shareholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Existing Shareholder
and any person that would give rise to a valid claim against the Existing
Shareholder or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
3. SUBSCRIPTION, PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES.
(a) SUBSCRIPTION OF NEW SHARES.
(i) CSFB AG agrees to subscribe for the account of
the Underwriters the New Shares on or before March ___, 2000 at the Issue Price
of EUR 1 for each New Share.
(ii) For the purpose of the registration of the
Capital Increase with the Commercial Register CSFB AG agrees to:
(A) deliver to the Company two counterparts
of the subscription certificate for the New Shares, each signed by it on or
before March ___, 2000 pursuant to Section 185 of the German Stock Corporation
Act (Aktiengesetz - "AKTG"),
(B) credit 25% of the Issue Price for the New
Shares in the total aggregate amount of EUR 5,000 - to a special account to be
opened with CSFB AG "SONDERKONTO KAPITALERHOHUNG I" which bears no interest and
shall be without commission, and
(C) deliver to the Company the relevant bank
confirmations as required pursuant to ▇▇.▇▇. 203 para 1, 188 para 2 in
connection with ▇▇.▇▇. 36 para 2, 36a para 1 and 37 para 1 AktG.
(iii) The Company shall apply for the registration
of the completion (DURCHFUHRUNG) of the Capital Increase with the Commercial
Register immediately after delivery of the documents listed under subsections
3(a)(ii)(A) and 3(a)(ii)(C) above.
(iv) Immediately after the completion of the Capital
Increase has been registered with the Commercial Register, the Company shall
deliver, first by facsimile, to CSFBC a copy of the notice of the registration
and three certified excerpts from the Commercial Register reflecting the
registered increase of the stated share capital of the Company.
(b) SUBSCRIPTION OF ADDITIONAL NEW SHARES.
(i) The Company agrees to grant CSFBC an option (the
"OVER ALLOTMENT OPTION") pursuant to which the Company will ensure, to the
extent legally permissible, that CSFBC will, upon its request, receive ownership
of up to 75,000 new shares (the "ADDITIONAL NEW SHARES") to be issued by the
Company from the Authorised Capital. CSFBC shall notify the Company not later
than 2:00 p.m. (German time) on the 30th day after the First Closing Date of the
number of Additional New Shares which will be required to be issued. Following
receipt of the notification from CSFBC pursuant to the foregoing sentence, the
Management Board of the Company shall adopt, and the members of the Management
Board
8
represent and warrant in their capacity as members of the Management Board to
CSFBC that they will adopt, without undue delay, but no later than within three
business days from the receipt of such notification, a resolution to increase
the share capital of the Company by drawing on its Authorised Capital in such
number of Additional New Shares as requested by CSFBC at an issue price of EUR 1
for each Additional New Share. The Company shall (A) procure the consent of the
Supervisory Board of the Company on the same day and (B) send to CSFBC
immediately by telefacsimile a copy of the resolution and the consent of the
Supervisory Board of the Company.
(ii) For the purpose of the registration with the
Commercial Register of the capital increase with respect to the Additional New
Shares, CSFB AG shall not later than 1:00 p.m. (German time) on the business day
following the delivery of a copy of the resolution of the Management Board
pursuant to subsection (b)(i) above and the consent of the Supervisory Board:
(A) deliver to the Company two counterparts of
the subscription certificate for the Additional New Shares signed by it
pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
(▇) credit 25% of the issue price for the
Additional New Shares being EUR 0,25 for each Additional New Share to a
special account to be opened with CSFB AG "SONDERKONTO KAPITALERHOHUNG II" which
bears no interest and shall be without commission,
(C) deliver to the Company the relevant bank
confirmation as required pursuant to ▇▇.▇▇. 203 para 1, 188 para 2 in connec-
tion with ▇▇.▇▇. 36 para 2, 36a para 1 und 37 para 1 AktG.
(iii) The Company shall apply for the registration of
the completion (DURCHFUHRUNG) of the capital increase in respect of the
Additional New Shares with the Commercial Register immediately after delivery of
the documents listed under subsections 3(a)(ii)(A) and 3(a)(ii)(C) above.
Immediately after the completion of the capital increase with respect to the
Additional New Shares has been registered with the Commercial Register, the
Company shall deliver, first by facsimile, to CSFB AG a copy of the notice of
the registration and three certified excerpts from the Commercial Register
reflecting the registered increase of the stated share capital of the Company.
(iv) The delivery of and payment for the
Additional New Shares shall then be as follows:
(A) At 10 a.m. (German time) on the first
business day after the registration of the capital increase for the Additional
New Shares, or at such other time and date as the Company and CSFBC may agree,
CSFB AG shall credit to the SONDERKONTO KAPITALERHOHUNG II the difference
between (i) 25% of the issue price already paid in and (ii) the product of the
Offer Price per Security offered and the number of the Additional New Shares to
be issued to CSFB AG minus Commissions.
(B) Immediately following the payment as
described in subsection (b)(iv)(A) above, the Company shall issue and deliver to
CSFB AG a global bearer share certificate in respect of the Additional New
Shares which shall be deposited with Clearstream Banking AG.
(C) Immediately after the global bearer share
certificate with respect to the New Additional Shares issued has been deposited
with Clearstream Banking AG, CSFB AG shall give instructions to Clearstream
Banking AG as to the number of Additional New Shares to be credited to the
account of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "EXISTING SHAREHOLDER").
(v) In order to assure the availability of the
Additional Shares when and if needed by CSFBC to cover over allotments, the
Existing Shareholder hereby grants to CSFB AG an irrevocable option to request a
securities loan (WERTPAPIERDARLEHEN) of up to 75,000 Additional Shares (the
"Securities Loan"). The Securities Loan will be free of charge.
9
(vi) The Existing Shareholder hereby agrees to
deposit such Additional Shares with a securities account maintained with CSFB AG
no later than by March ___ 2000. CSFB AG will hold such Additional Shares in
trust (TREUHANDERISCH) until the date the Drawing Notice (as defined below) is
delivered or the Securities Loan is terminated.
(vii) The Securities Loan may be drawn by a written
notice from CSFB AG to the Existing Shareholder (the "DRAWING NOTICE")
substantially in the form set forth in SCHEDULE C no later than April ____,
2000. The Drawing Notice shall state the number of Additional Shares to be
borrowed. The securities loan agreement will be concluded upon the receipt of
the Drawing Notice for such number of Additional Shares as set forth in the
relevant Drawing Notice. The Existing Shareholder represents and warrants that
he holds title to the Additional Shares free from any liens, encumbrances and
other rights of third parties and the Additional Shares have been fully paid in
and carry full dividend rights.
(viii) The Existing Shareholder authorizes CSFB AG
to transfer such number of Additional Shares set forth in any Drawing Notice to
the securities account specified in the Drawing Notice. The Parties hereby agree
that title to the Additional Shares shall pass to CSFB AG at the time at which
the Additional Shares are credited to the securities account specified by CSFB
AG and that CSFB AG is entitled to return securities of the same class. Upon
request of CSFB AG, the Existing Shareholder shall therefore issue to CSFB AG an
"Acquisition Authorisation" (ANEIGNUNGSERMACHTIGUNG) substantially in the form
as set forth in SCHEDULE D no later than on the date hereof.
(ix) CSFBC and CSFB AG shall be entitled to
compensation for damages due to non-performance or to rescind the Securities
Loan without being obligated to give notice or to grant any grace period to the
Existing Shareholder if (A) the Additional Shares are not timely delivered to
CSFB AG in accordance with subsection (vi), or (B) do not have the warranted
characteristics described in subsection (vii). In the event that CSFBC is
entitled to compensation for damages for non-performance as described in the
preceding sentence, CSFB AG shall also have the right to acquire on a stock
exchange or otherwise for the account of the Existing Shareholder such number of
shares equal to the number of Additional Shares as agreed upon pursuant to
subsection (v) hereof.
(x) The term of the Securities Loan with respect to
the Additional Shares in the number stated in the Drawing Notice shall be from
the time of transfer of ownership pursuant to subsection (viii) and, subject to
the provisions in the following sentence, terminates on the ______ calendar day
after the First Closing Date (the "SECOND CLOSING DATE"). The Securities Loan
may be terminated at any time, in whole or in part, by CSFB AG upon one business
day's prior notice to the Existing Shareholder; such termination notice must
state the date on which the relevant number of Shares will be returned by CSFB
AG.
(xi) If and to the extent that CSFBC has requested
the Company to issue Additional New Shares, CSFBC shall deliver the Additional
New Shares to the Existing Shareholder in order to fulfil the delivery claim of
the Existing Shareholder under the securities loan not later than the close of
business on the fourth business day after the global bearer share certificate
representing such Additional New Shares has been delivered to CSFBC by the
Company (it being understood that the global bearer share certificate
representing such Additional New Shares will only be issued after the completion
of the capital increase in respect of the Additional New Shares has been
registered with the Commercial Register). If and to the extent that CSFBC has
not requested the Company to issue Additional New Shares, CSFBC shall deliver
the Additional Shares borrowed not later than the close of business on the
fourth business day after the day of any termination of the Securities Loan. If
and to the extent that CSFBC has requested the Company to issue Additional New
Shares and (A) the Management Board fails to pass the resolution to increase the
stated share capital of the Company necessary to issue the Additional New Shares
within two banking days following receipt by the Company of such request or (B)
the Management Board passes the resolution to increase the stated share capital
of the Company necessary to issue the Additional New Shares but the Supervisory
Board of the Company fails to have consented to such resolution within three
banking days following receipt by the Company of the relevant request by CSFBC
or (C) the increase of the stated share capital is not registered with the
Commercial Register within 40 business days after CSFBC has
10
requested the Company to issue Additional New Shares, CSFBC shall be entitled,
instead of redelivering shares of the Company, to pay to the Existing
Shareholder an amount equal to the aggregate purchase price for the Additional
Shares minus Commissions both as to be determined in the Underwriting Agreement,
in which case the redelivery claim shall be extinguished to that extent.
(c) PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of U.S.$______ per ADS, the respective
numbers of ADSs constituting the Firm Securities and the Additional New Shares
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, at the office of
______________________________________, against payment of the purchase price in
U.S. dollars in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to Credit Suisse First Boston
Corporation ("CSFBC") drawn to the order of ___________________________ at the
office of ___________________________, at _______ A.M., New York time, on
_____________, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The ADRs evidencing the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFBC
requests and will be made available for checking and packaging at the above
office of _______________________________ at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Existing Shareholder from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Additional New Shares at the purchase price per ADS (for any Additional
New Shares delivered in ADS form) or per ordinary share (for any Additional New
Shares delivered in ordinary form), as applicable to be paid for the Firm
Securities. The Company agrees to issue to the Underwriters such Additional New
Shares and the Underwriters agree, severally and not jointly, to subscribe such
Additional New Shares. Such Additional Shares shall be purchased for the account
of each Underwriter in the same proportion as the number of ADSs constituting
the Firm Securities set forth opposite such Underwriter's name bears to the
total number of ADSs constituting the Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Additional New Shares shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to subscribe the Additional New Shares or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company. It
is understood that CSFBC is authorized to make payment for and accept delivery
of such Additional New Shares on behalf of the Underwriters pursuant to the
terms of CSFBC's instructions to the Company.
Each time for the delivery of and payment for the Additional New
Shares, being herein referred to as an "OPTIONAL CLOSING DATE," which may be the
First Closing Date (the First Closing Date and each Optional Closing Date, if
any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than five full business days after written notice
of election to subscribe the Additional New Shares is given. The Company and the
Existing Shareholder will deliver the Additional New Shares being purchased on
each Optional Closing Date to the Representatives for the accounts of the
several Underwriters, at the office of _____________________________, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of _______________________________________, at the
above office of ____________________________________. The ADRs evidencing the
Additional New Shares being purchased on each Optional Closing Date will be in
definitive form, in such denominations
11
and registered in such names as CSFBC requests upon reasonable notice prior to
such Optional Closing Date and will be made available for checking and
packaging at the above office of _________________________________ at a
reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
as set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFBC, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus or the ADS
Registration Statement and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and the ADS
Registration Statement (if its effectiveness is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus or the ADS Registration Statement and
of the institution by the Commission of any stop order proceedings in respect of
a Registration Statement or the ADS Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the end
12
of the fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Company's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement and the ADS Registration Statement (three of each of
which will be signed and will include all exhibits), each related preliminary
prospectus, and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other documents shall
be so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to shareholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to shareholders, and (ii) from time to
time, such other information concerning the Company as CSFBC may reasonably
request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement and the Deposit Agreement, for any
filing fees and other expenses (including fees and disbursements of its counsel)
incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee 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. of the Offered
Securities, for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(i) The Company will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Offered Securities and on the
execution and delivery of this Agreement. All payments to be made by the Company
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Company is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Company shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made.
(j) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC, except issuances of
Securities pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case outstanding on
the date hereof, grants of employee stock options pursuant to the terms of a
plan in effect on the date hereof, or issuances of Securities pursuant to the
exercise of such options.
13
(k) The Company will comply with the terms of the Deposit Agreement
so that the ADRs evidencing the ADSs will be executed by the Depositary and
delivered to the Underwriters, pursuant to this Agreement at the applicable
Closing Date.
(l) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent required
by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period of
three months following the date of the effectiveness of the Registration
Statement. The Designated Underwriter will notify the Company as to which
Participants will need to be so restricted. The Company will direct the transfer
agent to place stop transfer restrictions upon such securities for such period
of time.
(m) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by the
underwriters in connection with the Directed Share Program.
Furthermore, the company covenants with the Underwriters that the
company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Additional Shares to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers and Depositary made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Wirtschaftsprufungsgesellschaft
Steuerberatungsgesellschaft mbH confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the quarterly results of operations included
in the Registration Statements;
(iii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more than three
business days prior to the date of such letter, there was any change in the
capital stock or any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
14
(B) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and with the
corresponding period of the previous quarter, in consolidated net sales, net
operating income in the total or per share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percen-
tages derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that such
dollar amounts, percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall mean
the Initial Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by CSFBC. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. The ADS Registration
Statement shall have been declared effective not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have been
consented to by CSFBC. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement or the ADS Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S., German or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of a majority in interest of the
Underwriters including the Representatives, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market; (ii) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (iii) any
15
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iv) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (v)
any banking moratorium declared by U.S. Federal, New York or German authorities;
or (vi) any outbreak or escalation of major hostilities in which the United
States or Germany is involved, any declaration of war by Congress or the German
BUNDESTAG, or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
If (i) any of the events described in this subsection (c)
shall occur or (ii) any of the conditions described in this secion 6 are not
satisfied after the delivery to the Commercial Register of all documents
required to effect the registration of the completion (DURCHFUHRUNG) of the
Capital Increase, CSFBC may by notice in writing to the Company require the
Company to use its best efforts to procure that the application for registration
of the completion of the Capital Increase be withdrawn. If the application is
successfully withdrawn, the obligations of CSFBC to subscribe the New Shares or
Additional New Shares which would otherwise have been registered shall
terminate. If at any time after the registration of the implementation
(DURCHFUHRUNG) of the Capital Increase with the Commercial Register, any of the
conditions in this subsection (c) occurs, CSFBC shall be entitled to terminate
this Agreement. In the event of such termination, the following procedure shall
apply:
(i) Each Underwriter shall be obligated to pay to CSFBC the
Issue Price per New Share pro rata to its underwriting commitment as set forth
in Schedule A.
(ii) During a period not exceeding business days after the
termination of this Agreement, the Company shall discuss with CSFBC whether and
for what period, the offer and sale of the New Shares under the exclusion of the
pre-emptive rights of the existing Sharheolders shall be postponed, whether a
rights offering with respect to such New Shares shall be conducted, or whether
the Company may designate a third party to purchase the New Shares in accordance
with the applicable laws and the Articles of Association of the Company.
(iii) If the Company and CSFBC fail to agree on the proce-
dure to be applied within a period of ___ business days, or if none of
the transactions as contemplated under (ii) above has taken place
within ___ months after termination of this Agreement, the Underwriters may
sell the New Shares, subject to mandatorily applicable provisions of the German
Stock Corporation Act, at their discretion. The Underwriters shall retain an
amount equal to the Issue Price of such New Shares, the costs incurred in
financing the Issue Price and the expenses incurred in connection witht he
subscription and placement of the New Shares. The Company shall receive the
remainder of the proceeds from such sale.
(iv) Whilst holding such New Shares, each Underwriter hereby
agrees to waive its rights as holder of New Shares, including but not limited
to, voting rights, rights to payments of dividends or pre-emptive rights.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇▇, Hemmelrath & Partner, counsel for the Company, to the
effect that:
(i) The Company is a stock corporation (Aktiengesellschaft)
duly registered with the Commercial Register in Frankfurt am Main, Germany, and
is validly existing and in good standing under the laws of the State of the
Federal Republic of Germany, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and the
Company is
16
duly qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent the failure to
be so qualified would not have a Material Adverse Effect;
(ii) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; upon issuance by the Depositary of ADRs
evidencing ADSs against the deposit of Securities in respect thereof in
accordance with the Deposit Agreement, such ADRs will be duly and validly issued
and will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement; and the Deposit Agreement and the ADRs conform to the
descriptions thereof contained in the Prospectus;
(iii) The Offered Securities delivered on such Closing Date,
including those represented by ADSs, and all other outstanding ordinary shares
of the Company have been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the description thereof
contained in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Offered Securities, including those
represented by ADSs, other than those that have been validly waived or otherwise
extinguished with respect to the Offered Securities;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Deposit Agreement or this
Agreement in connection with the issuance or sale of the Offered Securities by
the Company, including the deposit of any Securities represented by the ADSs
with the Depositary and the issuance of the ADRs evidencing the ADSs, except
such as have been obtained and made under the Act and such as may be required
under state securities laws;
(v) There are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to such counsel's knowledge, contemplated;
(vi) The execution, delivery and performance of the Deposit
Agreement and this Agreement and the issuance and sale of the Offered
Securities, including the deposit of any Securities represented by the ADSs with
the Depositary and the issuance of the ADRs evidencing the ADSs, will not result
in a breach or violation of (i) any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, (ii) to such counsel's
knowledge, any agreements or instruments filed as exhibits to the Registration
Statement pursuant to item 601(b)(10) of Regulation S-K, which agreements or
instruments represent all material agreements or instruments to which the
Company or any subsidiary is subject or bound, or (iii) the charter or by-laws
of the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities, including the
ADSs, as contemplated by the Deposit Agreement and this Agreement, respectively;
(vii) This Agreement has been dulyauthorized, executed and
delivered by the Company; and
(viii) The Company's agreement to the choice of law provi-
sions set forth in Section 14 of the Underwriting Agreement will be recognized
and given effect to by the courts of the Federal Republic of Germany; the
Company can ▇▇▇ and be sued in its own name under the laws of the Federal
Republic of Germany; the irrevocable submission of the Company to the exclusive
jurisdiction of a
17
New York Court, the waiver by the Company of any objection to the laying of
venue of a proceeding of a New York Court, the appointment of the Authorized
Agent (as defined herein) as the authorized agent for the purposes described in
Section 14 of this Agreement, and the agreement of the Company that this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York are legal, valid and binding; service of process effected in
the manner set forth in Section 14 of the Underwriting Agreement will be
effective, insofar as the law of the Federal Republic of Germany is concerned,
to confer valid personal jurisdiction over the Company; and judgment obtained in
a New York Court arising out of or in relation to the obligations of the Company
under the Underwriting Agreement would be enforceable against the Company in the
courts of the State of New York.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Shearman & Sterling LP, counsel for the Company, to the
effect that
(i) The Deposit Agreement, assuming due authorization, execu-
tion and delivery by the Company and the Depositary, constitutes a valid and
legally binding obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; upon issuance by the
Depositary of ADRs evidencing ADSs against the deposit of Securities in respect
thereof in accordance with the Deposit Agreement, such ADRs will be duly and
validly issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement; and the Deposit Agreement and the ADRs
conform to the descriptions thereof contained in the Prospectus;
(ii) To such counsel's knowledge, and except as disclosed in
the Prospectus, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or the ADS Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company under the Act;
(iii) The Company is not and, after giving effect to the offer-
ing and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Deposit Agreement or this
Agreement in connection with the issuance or sale of the Offered Securities by
the Company, including the deposit of any Securities represented by the ADSs
with the Depositary and the issuance of the ADRs evidencing the ADSs, except
such as have been obtained and made under the Act and such as may be required
under state securities laws;
(v) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to such counsel's knowledge, contemplated;
(vi) The execution, delivery and performance of the Deposit
Agreement and this Agreement and the issuance and sale of the Offered
Securities, including the deposit of any Securities represented by the ADSs with
the Depositary and the issuance of the ADRs evidencing the ADSs, will not result
in a breach or violation of (i) any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the Company or
any subsidiary of the Company or any of their properties or (ii) to such
counsel's
18
knowledge, any agreements or instruments filed as exhibits to the Registration
Statement pursuant to item 601(b)(10) of Regulation S-K, which agreements or
instruments represent all material agreements or instruments to which the
Company or any subsidiary is subject or bound;
(vii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became effective under
the Act as of the date and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of a Registration Statement,
the ADS Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement, the ADS Registration Statement
and the Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe that any part of a Registration Statement or
the ADS Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; the
descriptions in the Registration Statements and Prospectus of statutes, legal
and governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such counsel do not
know of any legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described as required or
of any contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration Statements or
the Prospectus; and
(viii) Under the laws of the State of New York relating to
submission of personal jurisdiction, the Company has, pursuant to Section 14 of
the Underwriting Agreement, (A) validly submitted to the personal jurisdiction
of any state court or federal court located in the Borough of Manhattan in the
City of New York, in any action or suit or proceeding brought by any Underwriter
arising out of or relating to the Agreement, (B) has validly waived any
objection to the establishment of venue of a proceeding in any such court and
any immunity to jurisdiction of any such court, and (C) has validly appointed
the Authorized Agent (as defined herein) as its authorized agent for the purpose
described in Section 14 of the Underwriting Agreement; and service of process
effected on such agent in the manner set forth in Section 14 of the Underwriting
Agreement will be effective to confer valid personal jurisdiction over the
Company in any action arising out of or relating to the Underwriting Agreement.
(f) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Underwriters, or Oppenhof ▇▇▇▇▇▇▇, German
counsel for the Underwriters, such opinions, dated such Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements, the ADS
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Representatives shall have received the opinion dated
the date hereof of , ____________________ counsel to the Existing Shareholder,
to the effect that:
(i) The Existing Shareholder has valid and unencumbered title
to the Additional Shares delivered by the Existing Shareholder on such Closing
Date and had full
19
right, power and authority to sell, assign, transfer and deliver the Additional
Shares delivered by the Existing Shareholder on such Closing Date hereunder; and
the several Underwriters have acquired valid and unencumbered title to the
Additional Shares purchased by them from the Existing Shareholder on such
Closing Date hereunder;
(ii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be obtained or
made by the Existing Shareholder for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Additional
Shares to be sold by the Existing Shareholder, except such as have been obtained
and made under the Act and such as may be required under state securities laws;
(iii) The execution, delivery and performance of this Agreement
and the consummation of the transactions therein and herein contemplated will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the Existing
Shareholder or any of his properties or any agreement or instrument to which the
Existing Shareholder is a party or by which the Existing Shareholder is bound or
to which any of the properties of the Existing Shareholder is subject;
(iv) [The Power of Attorney] with respect to the Existing
Shareholder has been duly authorized, executed and delivered by the Existing
Shareholder and constitute valid and legally binding obligations of the Existing
Shareholder enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and
(v) This Agreement has been duly authorized, executed and
delivered by the Existing Shareholder.
(h) The Underwriters shall have received an opinion, dated such
Closing Date, from counsel for the Depositary, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed
and delivered by the Depositary and constitutes a valid and legally binding
obligation of the Depositary enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(ii) Upon issuance by the Depositary of the ADRs evidencing
the ADSs in accordance with the Deposit Agreement, such ADRs will be duly and
validly issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement; and the Deposit Agreement and ADRs conform
to the descriptions thereof in the Prospectus; and
(iii) The ADS Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the ADS Registration Statement or any part thereof has been
instituted or is pending or contemplated under the Act, and the ADS Registration
Statement, and each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
20
(i) The Depositary shall have furnished or caused to be
furnished to the Underwriters a certificate satisfactory to CSFBC of one of its
authorized officers with respect to the deposit with it of the Securities
represented by the ADSs against issuance of the ADRs evidencing the ADSs, the
execution, issuance, countersignature and delivery of the ADRs evidencing the
ADSs pursuant to the Deposit Agreement and such other matters related thereto as
CSFBC reasonably requests.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state on behalf of
the Company and not on their own behalf that: the representations and warranties
of the Company in this Agreement are true and correct; the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement or the ADS Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional Registration
Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior
to the time the Prospectus was printed and distributed to any Underwriter; and,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(k) The Representatives shall have received a letter, dated
such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Wirtschaftsprufungsgesellschaft
Steuerberatungsgesellschaft wbH which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
requests. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the ADS Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with
21
such purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Prospectus if the Company had previously furnished copies
thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) The Existing Shareholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Existing Shareholder expressly for
use therein; and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Existing Shareholder will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by an
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (c)
below.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any
who controls the Company within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the ADS Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that
22
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and the Existing Shareholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the third paragraph under the
caption "Underwriting" and the information contained in the eighth, fifteenth
and sixteenth paragraphs under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
anything contained herein to the contrary, if indemnity may be sought pursuant
to the last paragraph in Section 7(a) hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for the
Designated Underwriter for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control the Designated Underwriter within the meaning of either Section 15
of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Existing Shareholder on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Existing Shareholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Existing
Shareholder on the one hand and the Underwriters on the other shall be deemed to
be in the same
23
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Existing Shareholder bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Existing Shareholder or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Existing Shareholder
under this Section shall be in addition to any liability which the Company and
the Existing Shareholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First Closing Date or any Optional Closing Date and the aggregate number of ADSs
constituting the Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the number of
ADSs constituting the Offered Securities that the Underwriters are obligated to
purchase on such Closing Date, CSFBC may make arrangements satisfactory to the
Company and the Existing Shareholder for the purchase of such Offered Securities
by other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of ADSs constituting the Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of ADSs constituting the Offered Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Existing Shareholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Existing Shareholder, except as
provided in Section 9 (provided that if such default occurs with respect to the
Additional Shares after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Additional Shares purchased prior to
such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Existing Shareholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and
24
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Existing Shareholder, or the
Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company and the Existing Shareholder shall remain responsible
for the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, the Existing Shareholder and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c), the Company and the Existing Shareholder will,
jointly and severally reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company or the
Existing Shareholder, will be mailed, delivered or telegraphed and confirmed to
it at ________________________, Attention: ____________________; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representatives will act
for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. [ ] will act for
-----------
the Existing Shareholder in connection with such transactions, and any action
under or in respect of this Agreement taken by [ ] will
--------------------------
be binding upon the Existing Shareholder.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company irrevocably appoints
[___________________] (the "AUTHORIZED AGENT"), as its authorized agent in the
Borough of Manhattan in The City of New York upon which process may be served in
any such suit or proceeding, and agrees that service of process upon such agent,
and written notice of said service to the Company by the person serving the same
to the address provided in Section 10, shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
The obligation of the Company in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking
25
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to such
Underwriter hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to pay to
the Company an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
26
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Existing Shareholder and the several Underwriters in accordance
with its terms.
Very truly yours,
INTERSHOP COMMUNICATIONS
AKTIENGESELLSCHAFT
By:
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
By:
------------------------------------------
Name:
----------------------------------------
Title: Director, on behalf of Supervisory Board
-----------------------------------------
By:
--------------------------------------------
--------------------------------------------
As Attorney-in-Fact acting on behalf of the
Existing Shareholder named in Schedule B
to this Agreement.
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------------
Title: Managing Director
------------------------------------
27
SCHEDULE A
Underwriter Maximum Maximum
----------- Number of Number of
Firm ADSs Additional New Shares
--------- ---------------------
Credit Suisse First Boston Corporation.......................
Chase Securities Inc.........................................................
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc...............................................
Total.............................
=========================
28
SCHEDULE B
Number of
Existing Shareholder Additional New Shares
-------------------- ---------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇...............................................................
29
SCHEDULE C
FORM OF DRAWING NOTICE
An
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LEIHERKLARUNG
▇▇▇▇(beta) dem Underwriting Agreement vom o 2000 ("AGREEMENT") uben wir hiermit
das Recht aus, von Ihnen die Uberlassung von Stuck ______ Inhaber-Stammaktien
der INTERSHOP COMMUNICATIONS AG im Wege der Wertpapierleihe zu verlangen.
CSFB AG wird auf der Grundlage der von Ihnen erteilten Aneignungsermachtigung
die o.g. Stuck _____ Aktien wie folgt auf ein Wertpapierdepot von CSFB AG
ubertragen:
----------------------------------------------------------------------------------------------------------------
Stuck Aktien zu Lasten Depot Zugunsten Depot
... CSFB AG
(Depot Nr. ...) (Depot Nr. ...)
----------------------------------------------------------------------------------------------------------------
Das Eigentum an den ubertragenen Inhaber-Stammaktien geht in dem Zeitpunkt, in
dem sie auf das genannte Wertpapierdepot von CSFB AG gebucht sind, auf CSFB AG
uber CSFB AG wird jeweils Aktien ▇▇▇▇▇▇▇▇ Gattung an Sie in der in dem Agreement
genannten ▇▇▇▇▇ zuruckliefern, sofern CSFB AG nicht die ihr in diesem Agreement
eingeraumte Erwerbsoption gegenuber Ihnen ausubt.
Frankfurt am Main, den ______ o 2000
--------------------------------
CSFB AG
30
SCHEDULE C
FORM OF DRAWING NOTICE
To
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BORROWING NOTICE
Pursuant to the Underwriting Agreement dated March ___, 2000 (the
"AGREEMENT"), we hereby exercise the right to demand the transfer of
ownership of ________ ordinary bearer shares of INTERSHOP
COMMUNICATIONS AG by way of a securities loan.
On the basis of the acquisition authorisation issued by you, CSFB AG
will transfer the ________ shares named above to a securities account
of CSFB AG as follows:
--------------------------------------------------------------------------------------------------------
Number of shares debited securities account Credited securities account
CSFB AG
(account number______) (account number______)
--------------------------------------------------------------------------------------------------------
Ownership of the ordinary bearer shares shall pass to CSFB AG at the
point in time in which they are booked on the securities account of
CSFB AG. To the extent that CSFB AG does not exercise its option
granted in the Agreement to acquire shares, CSFB AG shall redeliver
shares of the same class within the period of time specified in the
Agreement.
Frankfurt am Main, April ___, 2000
CREDIT SUISSE FIRST BOSTON AG
By:
Name:
Title:
31
SCHEDULE D
FORM OF ACQUISITION AUTHORISATION
An
Credit Suisse First Boston AG
Sehr geehrte Damen und ▇▇▇▇▇▇,
ich habe bei Ihnen ein Wertpapierdepot Nr. ______ eroffnet, auf das im Rahmen
der anstehenden Plazierung der Aktien der INTERSHOP COMMUNICATIONS AG von mir
Stuck ______ Aktien der INTERSHOP COMMUNICATIONS AG ubertragen ▇▇▇▇▇▇ sind.
Ich ermachtige Sie hiermit, das Eigentum an bis zu Stuck ______ auf den Inhaber
lautender Stammaktien in Form von Stuckaktien ohne Nennwert der INTERSHOP
COMMUNICATIONS AG auf sich durch entsprechenden Depotubertrag zu ubertragen. Dem
Ubertrag hat eine Leiherklarung voranzugehen, die im wesentlichen den in der
ANLAGE ersichtlichen Inhalt hat. Mit der Ausubung dieser Ermachtigung soll das
Eigentum an den Aktien entsprechend dem Depotubertrag auf die CSFB AG ubergehen.
[Ort _____________,] ______ o 2000
--------------------------------------
(Unterschrift des Existing Shareholder)
32
SCHEDULE D
FORM OF ACQUISITION AUTHORISATION
To
Credit Suisse First Boston AG
Ladies and Gentlemen:
I have opened a securities account No. _______ with you, into which I have
transferred shares of INTERSHOP COMMUNICATIONS AG in connection with the
upcoming placement of INTERSHOP COMMUNICATIONS AG's shares.
I hereby authorise you to transfer ownership in up to _______ ordinary no par
value bearer shares of INTERSHOP COMMUNICATIONS AG to you by means of a
corresponding securities account transfer. The transfer must be preceded by a
drawing notice, the essential content of which is set forth in the attached
document. Upon exercise of this authorisation, ownership of the shares as per
the securities account transfer shall pass to Credit Suisse First Boston AG.
Place__________________________, April ___, 2000
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
33