1
Exhibit 1.1
Draft - December 1, 1998
XXXXXXX-XXXXXX INTERNATIONAL INC.
(a Delaware corporation)
___________ Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: ___________, 199_
2
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT......................................................1
SECTION 1. Representations and Warranties................................3
(a) Representations and Warranties by the Company and Mettler.........3
(i) Compliance with Registration Requirements....................4
(ii) Independent Accountants.....................................4
(iii) Financial Statements.......................................5
(iv) No Material Adverse Change in Business......................5
(v) Good Standing................................................6
(vi) Good Standing of Subsidiaries...............................6
(vii) Capitalization.............................................6
(viii) Authorization of Agreement................................7
(ix) Description of Securities...................................7
(x) Absence of Defaults and Conflicts............................7
(xi) Absence of Labor Dispute....................................8
(xii) Absence of Proceedings.....................................8
(xiii) Accuracy of Exhibits......................................8
(xiv) Possession of Intellectual Property........................8
(xv) Absence of Further Requirements.............................9
(xvi) Possession of Licenses and Permits.........................9
(xvii) Title to Property.........................................9
(xviii) Investment Company Act..................................10
(xix) Environmental Laws........................................10
(xx) Registration Rights........................................11
(xxi) Taxes.....................................................11
(xxii) Accounting Controls......................................11
(xxiii) Insurance...............................................11
(xxiv) Stabilization or Manipulation............................12
(xxv) Certain Relationships.....................................12
(xxvi) No Offering Material.....................................12
(xxvii) Suppliers...............................................12
(b) Representations and Warranties by the Selling Shareholders.......12
(c) Officer's Certificates...........................................14
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..............15
(a) Initial Securities...............................................15
(b) Option Securities................................................15
(c) Payment..........................................................16
(d) Denominations; Registration......................................16
SECTION 3. Covenants of the Company.....................................16
(a) Compliance with Securities Regulations and
Commission Requests..........................................17
(b) Filing of Amendments..............................................17
(c) Delivery of Registration Statements...............................17
(d) Delivery of Prospectuses..........................................17
i
3
(e) Continued Compliance with Securities Laws.........................18
(f) Blue Sky Qualifications...........................................18
(g) Rule 158..........................................................18
(h) Restriction on Sale of Securities.................................19
(i) Reporting Requirements............................................19
SECTION 4. Payment of Expenses..........................................19
(a) Expenses..........................................................19
(b) Expenses of the Selling Shareholders..............................20
(c) Termination of Agreement..........................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations.................20
(a) Effectiveness of Registration Statement...........................20
(b) Opinion of Counsel for Company....................................21
(c) Opinion of German Counsel for the Company.........................21
(d) Opinion of Swiss Counsel for the Company..........................21
(e) Opinion of Xxxxxxxxx X. Xxxxx, Esq................................21
(f) Opinion of Counsel for the Selling Shareholders...................21
(g) Opinion of Counsel for U.S. Underwriters..........................22
(h) Officers' Certificate.............................................22
(i) Certificate of Selling Shareholders...............................22
(j) Litigation Certificate............................................22
(k) Accountant's Comfort Letter.......................................23
(l) Bring-down Comfort Letter.........................................23
(m) Approval of Listing...............................................23
(n) No Objection......................................................23
(o) Lock-up Agreements; Registration Rights...........................23
(p) Purchase of Initial International Securities......................23
(q) Conditions to Purchase of U.S. Option Securities..................23
(i) Officers' Certificate........................................24
(ii) Certificate of Selling Shareholder..........................24
(iii) Opinion of Counsel for Company.............................24
(iv) Opinion of Xxxxxxxxx X. Xxxxx, Esq..........................24
(v) Opinion of Counsel for Selling Shareholders..................24
(vi) Opinion of Counsel for U.S. Underwriters....................24
(vii) Opinion of German Counsel for Company......................24
(viii) Opinion of Swiss Counsel for Company......................25
(ix) Bring-down Comfort Letter...................................25
(x) Litigation Certificate......................................25
(r) Additional Documents..............................................25
(s) Termination of Agreement..........................................25
SECTION 6. Indemnification..............................................25
(a) Indemnification of U.S. Underwriters..............................25
(b) Indemnification of Selling Shareholders by
the Company and Mettler......................................27
(c) Indemnification of Company, Directors and
Officers and Selling Shareholders............................27
ii
4
(d) Actions against Parties; Notification.............................28
(e) Settlement without Consent if Failure to Reimburse................28
(f) Other Agreements with Respect to Indemnification..................28
SECTION 7. Contribution.................................................28
SECTION 8. Representations, Warranties and Agreements
to Survive Delivery..........................................30
SECTION 9. Termination of Agreement.....................................30
(a) Termination; General..............................................30
(b) Liabilities.......................................................31
SECTION 10. Default by One or More of the U.S. Underwriters............31
SECTION 11. Default by one or more of the Selling Shareholders.........32
SECTION 12. Notices....................................................32
SECTION 13. Parties....................................................32
SECTION 14. GOVERNING LAW AND TIME.....................................33
SECTION 15. Effect of Headings.........................................33
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B - List of Selling Shareholders.......................Sch B-1
Schedule C - Shares of Common Stock.............................Sch C-1
Schedule D - List of persons and entities subject to lock-up....Sch D-1
Schedule E - List of Selling Shareholders Delivering Opinions...Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
Exhibit B - Form of Local Counsel Opinion...........................B-1
Exhibit C - Form of Opinion of Xxxxxxxxx X. Xxxxx, Esq..............C-1
Exhibit D - Form of Opinion of Selling Shareholders' Counsel........D-1
Exhibit E - Form of Litigation Certificate of the
Chief Financial Officer and the General
Counsel of the Company...........................................E-1
Exhibit F - Form of Lock-up Letter..................................F-1
iii
5
XXXXXXX-XXXXXX INTERNATIONAL INC.
(a Delaware corporation)
_____________________ Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
________________, 199_
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
____________________________
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxx-Xxxxxx International Inc., a Delaware corporation (the "Company"),
Xxxxxxx-Xxxxxx, Inc. ("Mettler") and the persons listed on Schedule B hereto
(the "Selling Shareholders"), confirm their agreement with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of
the other U.S. Underwriters named in Schedule A hereto (collectively, the "U.S.
Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and
________________________ are acting as representatives (in such capacity, the
"U.S. Representatives"), with respect to (i) the sale by the Selling
Shareholders, and the purchase by the U.S. Underwriters, acting severally and
not jointly, of the respective numbers of shares of Common Stock, par value $.01
per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) the grant by the Selling Shareholders to the U.S. Underwriters,
6
acting severally and not jointly, of the option described in Section 2(b)
hereof to purchase all or any part of _______________ additional shares of
Common Stock to cover over-allotments, if any. The aforesaid ______________
shares of Common Stock (the "Initial U.S. Securities") to be purchased by the
U.S. Underwriters and all or any part of the _________________shares of Common
Stock subject to the option described in Section 2(b) hereof (the "U.S. Option
Securities") are hereinafter called, collectively, the "U.S. Securities".
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by the Selling
Shareholders of an aggregate of _________ shares of Common Stock (the "Initial
International Securities") through arrangements with certain underwriters
outside the United States and Canada (the "International Managers") for which
Xxxxxxx Xxxxx International and _______________________________________ are
acting as lead managers (the "Lead Managers"), and the grant by the Selling
Shareholders to the International Managers, acting severally and not jointly, of
an option to purchase all or any part of the International Managers' pro rata
portion of up to __________________ additional shares of Common Stock solely to
cover overallotments, if any (the "International Option Securities" and,
together with the U.S. Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities". It is understood that the Selling
Shareholders are not obligated to sell and the U.S. Underwriters are not
obligated to purchase any Initial U.S. Securities unless all of the Initial
International Securities are contemporaneously purchased by the International
Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in
such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as soon as
the U.S. Representatives deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No.__________) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
2
7
"Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). Two forms of prospectus are to be used in connection with the offering
and sale of the Securities: one relating to the U.S. Securities (the "Form of
U.S. Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information". Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively, the "Prospectuses". If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus, dated __________________, 199_ and
preliminary International Prospectus, dated ________________, 199_,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the U.S. Prospectus, the
International Prospectus or any Term Sheet or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and Mettler. The
Company and Mettler, jointly and severally, represent and warrant to each U.S.
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agree with each U.S. Underwriter, as follows:
3
8
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434 and the
Prospectuses shall not be "materially different", as such term is used
in Rule 434, from the prospectuses included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the U.S. Prospectus made
in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxxx Xxxxx expressly
for use in the Registration Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T of the 1933 Act Regulations.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
4
9
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the consolidated financial
position of the Company and its subsidiaries and, in respect of the
Predecessor Business (as defined in the Registration Statement under
"Selected Historical Financial Information"), of the Company and its
combined affiliated entities, as the case may be, at the dates
indicated and the statement of operations, changes in net assets,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries and, in respect of the Predecessor Business, of the
Company and its combined affiliated entities, as the case may be, for
the periods specified; said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement. The pro forma information and the related notes thereto
included in the Registration Statement and the Prospectuses present
fairly the information shown therein, have been properly compiled on
the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and no material adverse effect on the ability of the Company or Mettler
to enter into this Agreement or the International Purchase Agreement or
to consummate the transactions contemplated in this Agreement or the
International Purchase Agreement (any such material adverse change or
effect, a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
5
10
(v) Good Standing. The Company and Mettler have been duly
organized and are validly existing as corporations in good standing
under the laws of the State of Delaware and have corporate power and
authority to own, lease and operate their properties and to conduct
their business as described in the Prospectuses and to enter into and
perform their obligations under this Agreement; and the Company and
Mettler are duly qualified as foreign corporations to transact business
and are in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except for directors' qualifying shares or as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for any security interest, mortgage, pledge, lien,
encumbrance, claim or equity created pursuant to the Credit Agreement
(as defined in the Registration Statement) or under any local working
capital facilities or interest protection agreements secured under the
Credit Agreement (the "Other Secured Agreements"); and none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Company's registration
statement on Form S-1 (Registration No. 333-35597) and (b) certain
other subsidiaries which, considered in the aggregate as a single
Subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company shall be as set forth in the Prospectuses
under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectuses or pursuant
to the exercise of convertible securities or options referred to in the
Prospectuses). The shares of issued and outstanding capital stock of
the
6
11
Company, including the Securities to be purchased by the
Underwriters from the Selling Shareholders, have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company, including the
Securities to be purchased by the Underwriters from the Selling
Shareholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company and Mettler.
(ix) Description of Securities. The Common Stock conforms in
all material respects to all statements relating thereto contained in
the Prospectuses and such description conforms to the rights set forth
in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments"), except for (a) with
respect to the Company's subsidiaries other than the Subsidiaries, such
violations that would not result in a Material Adverse Effect, and (b)
such defaults that would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement and the
International Purchase Agreement by the Company or Mettler, the
consummation by the Company or Mettler of the transactions contemplated
in this Agreement and the International Purchase Agreement and the
transactions contemplated herein and in the Registration Statement
(including the sale of the Securities), and compliance by the Company
and Mettler with their obligations under this Agreement and the
International Purchase Agreement have been duly authorized by all
necessary corporate action by the Company or Mettler, as the case may
be, and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for (A) such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect or (B) such liens, charges, or encumbrances
as are created in connection with the execution, delivery and
performance of the Credit Agreement or the Other Secured Agreements),
nor will such action result in any
7
12
violation of the provisions of the charter or by-laws of the
Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company or Xxxxxxx, is imminent, and neither the Company nor
Xxxxxxx is aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, might
reasonably be expected to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or Xxxxxxx, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the International
Purchase Agreement or the performance by the Company and Xxxxxxx of
their obligations hereunder or under the International Purchase
Agreement, and the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated
8
13
by them except where the failure to so own, possess or
acquire, singly and in the aggregate, would not result in a Material
Adverse Effect, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
Xxxxxxx of their obligations hereunder, in connection with the offering
or sale of the Securities under this Agreement and the International
Purchase Agreement or the consummation of the transactions contemplated
by this Agreement or the International Purchase Agreement, except such
as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations and foreign or state securities or blue sky
laws.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except
for such Governmental Licenses the failure of which to possess would
not have a Material Adverse Effect; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any written notice of any judicial or
administrative proceedings relating to the revocation or modification
of any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectuses or as set
forth in the Credit Agreement or the Other Secured Agreements, (b) do
not, singly or in the
9
14
aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries or (c) would not
have a Material Adverse Effect; all of the leases and subleases
material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectuses, are in
full force and effect; and neither the Company nor any subsidiary has
any notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease
except for such claims as would not singly or in the aggregate result
in a Material Adverse Effect.
(xviii) Investment Company Act. Neither the Company nor
Xxxxxxx is or upon (a) the sale of the Securities as herein
contemplated or (b) the consummation of the transactions contemplated
by this Agreement or the International Purchase Agreement will be, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, regulation, ordinance, code, common law
or any judicial or administrative interpretation thereof enforceable at
law or in equity, including any applicable judicial or administrative
order, consent, decree or judgment, relating to pollution or protection
of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products subject to regulation under any environmental law
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials subject to regulation under any
environmental law (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
knowledge of the Company or Xxxxxxx, threatened administrative,
regulatory or judicial actions, suits, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the knowledge of the Company or Xxxxxxx, there
are no events or circumstances that could reasonably be expected to
form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or agency,
against the
10
15
Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xx) Registration Rights. Except as described in the
Registration Statement and the Prospectuses, no person has registration
rights or other similar rights to have any securities of the Company
registered by the Company under the 1933 Act. Except for persons whose
shares have been included in the Registration Statement no persons who
have registration rights or other similar rights relating to the Common
Stock of the Company have any such rights to have Common Stock
registered pursuant to the Registration Statement which have not been
waived. There are no persons with registration rights or other similar
rights to have any securities registered by the Company's subsidiaries
under the 1933 Act.
(xxi) Taxes. The Company and its subsidiaries have filed all
tax returns that are required to have been filed by them pursuant to
applicable law except insofar as the failure to file such returns would
not result in a Material Adverse Effect, and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the
Company and its subsidiaries, except for such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to
which adequate reserves have been provided in accordance with GAAP, and
except for the failure to pay such taxes which, individually and in the
aggregate, would not have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its subsidiaries
in respect of any tax liability for any years not finally determined
are adequate in accordance with GAAP to meet any assessments or
reassessments for additional tax for any years not finally determined,
except to the extent of any inadequacy that would not result in a
Material Adverse Effect.
(xxii) Accounting Controls. The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxiii) Insurance. The Company and its subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the
same or similar business, and all policies with respect to such
insurance are in full force and effect.
11
16
(xxiv) Stabilization or Manipulation. Neither the Company nor
any of its subsidiaries has taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of any such entity to
facilitate the sale or resale of the Securities.
(xxv) Certain Relationships. No relationship, direct or
indirect, exists between or among any of the Company and any of its
subsidiaries or any affiliate of any such entity, on the one hand, and
any director, officer, stockholder, customer or supplier of any of
them, on the other hand, which is required by the 1933 Act or by the
1933 Act Regulations to be described in the Registration Statement or
the Prospectuses which is not so described or is not described as
required.
(xxvi) No Offering Material. The Company and its subsidiaries
have not distributed and, prior to the later to occur of (i) the
Closing Time and (ii) completion of the distribution of the Securities,
will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement, any preliminary prospectus, the Prospectus or other
materials, if any, permitted by the 1933 Act and approved by the U.S.
Representatives.
(xxvii) Suppliers. No supplier of merchandise to the Company
or any of its subsidiaries has ceased shipments of merchandise thereto,
which cessation would result in a Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally and not jointly represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time, and, if the Selling
Shareholder is selling Option Securities on a Date of Delivery, as of each such
Date of Delivery, and agrees with each Underwriter, as follows:
(i) Such Selling Shareholder has reviewed and is familiar with
the Registration Statement and the Prospectuses and the Prospectuses do
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
provided that the representations and warranties made in this paragraph
(i) shall be only with respect to the information furnished in writing
by or on behalf of Such Shareholder expressly for use in the
Registration Statement (or any amendment thereto).
(ii) Such Selling Shareholder has full right, power and
authority to execute, deliver and perform its obligations under this
Agreement, the International Purchase Agreement and the Power of
Attorney and Custody Agreement, and to sell, transfer and deliver the
Securities pursuant to this Agreement; and this Agreement, the
International Purchase Agreement and the Power of Attorney and Custody
Agreement have been duly
12
17
authorized, executed and delivered by or on behalf of such
Selling Shareholder and constitutes a valid and binding agreement of
such Selling Shareholder, enforceable against such Selling Shareholder
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting enforcement of creditors' rights generally or
by general principles of equity.
(iii) There is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of such Selling Shareholder,
threatened, to which such Selling Shareholder is or would be a party or
of which the property of such Selling Shareholder is or may be subject,
that (i) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the sale of Securities by such Selling Shareholder
or any of the other transactions contemplated hereby or (ii) questions
the legality or validity of any such transactions or seeks to recover
damages or obtain other relief in connection with any such
transactions.
(iv) No filing, authorization, approval, consent, license,
order, registration or qualification of or with any government,
governmental instrumentality or court (other than under the 1933 Act
and the 1933 Act Regulations and the securities or blue sky laws of the
various states in connection with the sale of the Securities), domestic
or foreign, is required by reason of facts specifically pertaining to
such Selling shareholder or its legal or regulatory status in
connection with the due authorization, execution and delivery by such
Selling Shareholder of this Agreement, the International Purchase
Agreement or the Power of Attorney and Custody Agreement and the valid
sale and delivery of the Securities to be sold by such Selling
Shareholder hereunder and thereunder.
(v) The execution, delivery and performance of this Agreement,
the International Purchase Agreement and the Power of Attorney and
Custody Agreement by such Selling Shareholder, the sale of the
Securities by such Selling Shareholder hereunder and thereunder, the
consummation by such Selling Shareholder of the transactions herein and
therein contemplated and the compliance by such Selling Shareholder
with all the provisions of this Agreement, the International Purchase
Agreement and the Power of Attorney and Custody Agreement will not
result in a violation of the charter or bylaws of such Selling
Shareholders which are corporations or the partnership agreement or
certificate of limited partnership, if applicable, of such Selling
Shareholders which are partnerships and will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material agreement or instrument to
which such Selling Shareholder is a party or by which such Selling
Shareholder is bound, nor will such action result in any violation of
the provisions of any statute relating to such Selling Shareholders or
its legal or regulatory status or any judgment, order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Shareholder.
13
18
(vi) Such Selling Shareholder has, and will at the Closing
Time have, and, if such Selling Shareholder is selling Option Shares on
a Date of Delivery, will on the Date of Delivery have, valid and
marketable title to the Securities to be sold by the Selling
Shareholder pursuant to this Agreement and the International Purchase
Agreement, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; and, at the Closing
Time and, if such Selling Shareholder is selling Option Shares on a
Date of Delivery, at the Date of Delivery, upon delivery of the
Securities to be sold by such Selling Shareholder and payment of the
purchase price therefor as contemplated in this Agreement and the
International Purchase Agreement, each of the Underwriters will receive
good and marketable title to the Securities purchased by it from such
Selling Shareholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(vii) Certificates for all of the Securities to be sold by
such Selling Shareholder pursuant to this Agreement and the
International Purchase Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been placed in
custody with the Custodian for delivery to the U.S. Underwriters
pursuant to this Agreement and the International Managers pursuant to
the International Purchase Agreement.
(viii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock; and such Selling
Shareholder has not distributed and will not distribute any prospectus
(as such term is defined in the 1933 Act and the 1933 Act Regulations)
in connection with the offering and sale of the Securities other than
any preliminary prospectus filed with the Commission or the
Prospectuses or other material permitted by the 1933 Act or the 1933
Act Regulations.
(ix) Except as described in the Registration Statement and the
Prospectuses, neither such Selling Stockholder nor any of its
affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has
any other association with (within the meaning of Article I, Section
1(m) of the By-laws of the National Association of Securities Dealers,
Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company, Xxxxxxx or any of the Company's subsidiaries delivered to the
Global Coordinator, the U.S. Representatives or to counsel for the U.S.
Underwriters shall be deemed a joint and several representation and warranty by
the Company and Xxxxxxx to each U.S. Underwriter as to the matters covered
thereby; and any Certificate signed by or on behalf of the Selling Shareholders
as such and delivered to the representatives or to counsel for Underwriters
pursuant to the terms
14
19
of this Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Selling Shareholder, severally and not jointly, agrees to sell to
each U.S. Underwriter, severally and not jointly, and each U.S. Underwriter,
severally and not jointly, agrees to purchase from each Selling Shareholder, at
the price per share set forth in Schedule C, that proportion of Initial U.S.
Securities set forth in Schedule B opposite the name of such Selling Shareholder
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter, plus any additional number of Initial U.S.
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof bears to the total number of Initial U.S.
Securities, subject, in each case, to such adjustments among the U.S.
Underwriters as the U.S. Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholders, acting severally and not jointly, hereby
grant an option to the U.S. Underwriters, severally and not jointly, to purchase
up to an additional ______________ shares of Common Stock, as set forth in
Schedule B, at the price per share set forth in Schedule C, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Selling Shareholders setting forth the number of U.S. Option
Securities as to which the several U.S. Underwriters are then exercising the
option and the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for the U.S. Option Securities (a
"Date of Delivery") shall be determined by the Global Coordinator, but shall not
be later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the U.S. Option Securities, each of the
U.S. Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of U.S. Option Securities then being purchased
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Debevoise & Xxxxxxxx, New York, New York
15
20
10022, or at such other place as shall be agreed upon by the Global
Coordinator, the Company and the Selling Shareholders, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator, the Company and the Selling Shareholders, on each Date of
Delivery as specified in the notice from the Global Coordinator to the Selling
Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholders' Power of Attorney and Custody Agreement,
as the case may be, against delivery to the U.S. Representatives for the
respective accounts of the U.S. Underwriters of certificates for the U.S.
Securities to be purchased by them. It is understood that each U.S. Underwriter
has authorized the U.S. Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the U.S.
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial U.S. Securities or the U.S. Option Securities, if any, to
be purchased by any U.S. Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such U.S. Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in the City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434,
16
21
as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the U.S. Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably
request. The U.S.
17
22
Prospectus and any amendments or supplements thereto furnished
to the U.S. Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the U.S. Underwriters or
for the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably request;
provided, however, that if the date of any such amendment or supplement is more
than 270 days after the date hereof, the preparation, filing and furnishing of
such amendment or supplement shall be at the expense of the Underwriters.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
18
23
(h) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of or otherwise dispose or
transfer any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Securities
to be sold hereunder or under the International Purchase Agreement, (B) any
shares of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectuses, (C) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to existing employee benefit
plans of the Company referred to in the Prospectuses, (D) any shares of Common
Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan, (E) the issuance of options under the Company's stock option
plan and the exercise by the Company's employees of their rights relating
thereto or (F) the filing of a registration statement on Form S-8 under the 1933
Act relating to Common Stock pursuant to the Company's stock option plan.
(i) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and Xxxxxxx, jointly and severally, will pay
all expenses incident to the performance of their obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
and the Selling Shareholder's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto (such fees and expenses of counsel not to
19
24
exceed $5,000.00), (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Securities and (x) the fees and expenses incurred in
connection with the listing of the Securities on the NYSE.
(b) Expenses of the Selling Shareholders. Except as provided in Section
4(a) above, the Selling Shareholders, severally and not jointly, will pay all
expenses incident to the performance of their respective obligations under, and
the consummation of the transactions contemplated by this Agreement, including
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the U.S. Underwriters, and their transfer between
the Underwriters pursuant to an agreement between such Underwriters.
(c) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5(s) or
Section 9(a)(i) or Section 11 hereof, the Company and Xxxxxxx shall reimburse
the U.S. Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the U.S.
Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
Company, Xxxxxxx and the Selling Shareholders contained in Section 1 hereof or
in certificates of any officer of the Company, Xxxxxxx or any subsidiary of the
Company or on behalf of any Selling Shareholder delivered pursuant to the
provisions hereof, to the performance by the Company and Xxxxxxx of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
20
25
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for the
Company and the Selling Shareholders, in form and substance satisfactory to
counsel for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the U.S. Underwriters
may reasonably request.
(c) Opinion of German Counsel for the Company. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Bruckhaus Xxxxxxxx Xxxxxxxxx, special German counsel for the
Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters to the effect set forth in Exhibit B hereto and
to such further effect as counsel to the U.S. Underwriters may reasonably
request, with respect to each direct or indirect subsidiary of the Company or
Xxxxxxx organized under the laws of Germany.
(d) Opinion of Swiss Counsel for the Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Pestalozzi Xxxxx & Xxxxx, special Swiss counsel for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request, with respect
to each direct or indirect subsidiary of the Company or Xxxxxxx organized under
the laws of Switzerland.
(e) Opinion of Xxxxxxxxx X. Xxxxx, Esq. At the Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxxx X. Xxxxx, Esq., in form and substance satisfactory to
counsel for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters to the effect set forth in
Exhibit C hereto and to such further effect as counsel to the U.S. Underwriters
may reasonably request.
(f) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of counsel for each of the Selling Shareholders listed on Schedule
E hereto, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit D hereto and to such further
effect as counsel to the Underwriters may reasonably request
(g) Opinion of Counsel for U.S. Underwriters. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Debevoise & Xxxxxxxx, counsel for the U.S. Underwriters, together with
signed or
21
26
reproduced copies of such letter for each of the other U.S. Underwriters with
respect to the matters set forth in clauses (1), (2), (5), (6) through (9),
inclusive, (10) (solely as to the information in the Prospectus under
"Description of Capital Stock--Common Stock") and the first full paragraph of
text following clause 19 of Exhibit A hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the U.S. Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(h) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the U.S.
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of each of the Company and Xxxxxxx, in each case dated as of Closing Time, to
the effect that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1(a) hereof are true and correct in
all material respects with the same force and effect as though expressly made at
and as of Closing Time, (iii) each of the Company and Xxxxxxx has complied with
all agreements and satisfied all conditions contained in this Agreement and the
International Purchase Agreement on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and, to the knowledge of such officer
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(i) Certificate of Selling Shareholders. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(j) Litigation Certificate. At Closing Time, the U.S. Representatives
shall have received a certificate of the chief financial officer and the general
counsel of the Company, dated as of Closing Time, in form and substance
satisfactory to counsel for the U.S. Underwriters to the effect set forth in
Exhibit E.
(k) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from KPMG Fides Peat a
letter dated such date,
22
27
in form and substance satisfactory to the U.S. Representatives, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(l) Bring-down Comfort Letter. At Closing Time, the U.S.
Representatives shall have received from KPMG Fides Peat a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (k) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(m) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the NYSE.
(n) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(o) Lock-up Agreements; Registration Rights. At the date of this
Agreement, the U.S. Representatives shall have received an agreement
substantially in the form of Exhibit F hereto signed by the persons listed on
Schedule D hereto. The Company shall have taken all required action so that no
person (other than persons whose shares are included in the Registration
Statement) who has registration rights or other similar rights relating to
Common Stock of the Company to have Common Stock registered pursuant to the
Registration Statement shall be permitted to exercise such rights; and no such
person who has registration rights or other similar rights relating to the
Common Stock of the Company to have Common Stock registered pursuant to the
Registration Statement shall have exercised such rights (other than persons
whose shares are included in the Registration Statement).
(p) Purchase of Initial International Securities. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities under
this Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(q) Conditions to Purchase of U.S. Option Securities. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company and the Selling Shareholders contained herein and
the statements in any certificates furnished by the Company, any subsidiary of
the Company or the Selling Shareholders hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the U.S.
Representatives shall have received:
23
28
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of each of the Company,
Xxxxxxx and of the chief financial or chief accounting officer of each
of the Company and Xxxxxxx confirming that the certificate delivered at
the Closing Time pursuant to Section 5(h) hereof remains true and
correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholder. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(i) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for the
Company and the Selling Shareholders, in form and substance reasonably
satisfactory to counsel for the U.S. Underwriters, dated such Date of
Delivery, relating to the U.S. Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of Xxxxxxxxx X. Xxxxx, Esq. The favorable opinion
of Xxxxxxxxx X. Xxxxx, Esq., dated such Date of Delivery, in form and
substance reasonably satisfactory to counsel for the U.S. Underwriters
and otherwise to the same effect as the opinion required by Section
5(e) hereof.
(v) Opinion of Counsel for Selling Shareholders. The favorable
opinion of counsel for each of Selling Shareholders listed on Schedule
E hereto, in form and substance reasonably satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery, and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Debevoise & Xxxxxxxx, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(f) hereof.
(vii) Opinion of German Counsel for Company. The favorable
opinion of Bruckhaus Xxxxxxxx Xxxxxxxxx, special German counsel for the
Company, in form and substance reasonably satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(viii) Opinion of Swiss Counsel for Company. The favorable
opinion of Pestalozzi Xxxxx & Xxxxx, special Swiss counsel for the
Company, in form and substance
24
29
reasonably satisfactory to counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(ix) Bring-down Comfort Letter. A letter from KPMG Fides Peat,
in form and substance satisfactory to the U.S. Representatives and
dated such Date of Delivery, and substantially in the same form and
substance as the letter furnished to the U.S. Representatives pursuant
to Section 5(l) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(x) Litigation Certificate. A certificate of the chief
financial officer and the general counsel of the Company, dated such
Date of Delivery, in form and substance satisfactory to counsel for the
U.S. Underwriters and otherwise to the same effect as the certificate
required by Section 5(j) hereof.
(r) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may reasonably request for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the sale of
the Securities as herein contemplated shall be satisfactory in form and
substance to the U.S. Representatives and counsel for the U.S. Underwriters.
(s) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant Option
Securities, may be terminated by the U.S. Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. Each of the Company, and
Xxxxxxx, jointly and severally, agrees to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
25
30
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
U.S. Prospectus (or any amendment or supplement thereto) and (b) with respect to
any preliminary prospectus to the extent that any such loss, liability, claim,
damage or expense of such U.S. Underwriter results solely from the fact that
such U.S. Underwriter sold Securities to a person as to whom the Company shall
establish that there was not sent by commercially reasonable means, at or prior
to the written confirmation of such sale, a copy of the U.S. Prospectus in any
case where such delivery is required by the 1933 Act, if the Company has
previously furnished copies thereof in sufficient quantity to such U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus that was corrected in the U.S.
Prospectus.
Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter
26
31
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company and Mettler to each U.S. Underwriter;
provided however, that with respect to each Selling Shareholder, the
indemnification provision in the paragraph shall be only with respect to the
information furnished in writing by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement (or any amendment thereto),
including Rule 430A Information and the Rule 434 Information, if applicable, or
any preliminary U.S. prospectus or U.S. Prospectus (or any amendment or
supplement thereto); and provided, further, that the aggregate liability of any
Selling Shareholder pursuant to this paragraph shall be limited to the net
proceeds recovered by such Selling Shareholder from the Securities purchased by
the Underwriters from such Selling Shareholder pursuant to this Agreement and
the International Purchase Agreement; and provided further, that no Selling
Shareholder shall be liable for any untrue statement, omission or alleged
omission of any other Selling Shareholder.
(b) Indemnification of Selling Shareholders by the Company and Mettler.
The Company and Mettler, jointly and severally, agree to indemnify and hold
harmless each of the Selling Shareholders and each person, if any, who controls
any Selling Shareholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent that the Company and Mettler have
agreed to indemnify and hold harmless each U.S. Underwriter pursuant to the
preceding paragraph; provided, however, the Company and Mettler shall not be
liable under this paragraph to the extent any loss, liability, claim, damage or
expense described in the preceding paragraph arises out of or is based upon an
untrue statement, alleged untrue statement, omission or alleged omission based
upon information relating to such Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto).
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
27
32
Statement (or any amendment thereto) or such preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Sections 6(b) and 6(c) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company, Mettler and the
Selling Shareholders with respect to indemnification.
28
33
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, Mettler
and the Selling Shareholders on the one hand and the U.S. Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, Mettler and the Selling Shareholders on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions,
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, Mettler and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the U.S. Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the Selling Shareholders
and the total underwriting discount received by the U.S. Underwriters, in each
case as set forth on the cover of the U.S. Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the U.S. Securities as set forth on such cover.
The relative fault of the Company, Mettler and the Selling Shareholders
on the one hand and the U.S. Underwriters on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, Mettler and the Selling
Shareholders on the one hand or by the U.S. Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, Mettler, the Selling Shareholders and the U.S.
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
U.S. Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
29
34
Notwithstanding the provisions of this Section 7, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the U.S.
Securities purchased from such Selling Stockholder and (ii) no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or such Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company, Mettler and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, Mettler, any
subsidiaries of the Company or the Selling Shareholders submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, Mettler or the Selling Shareholders,
and shall survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial
30
35
markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Xxxxxxx Xxxxx,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the NYSE, or if trading
generally on the American Stock Exchange, the NYSE or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal,
New York or Swiss authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), Xxxxxxx Xxxxx shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, Xxxxxxx Xxxxx
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of U.S. Securities to be purchased on such date, each of
the non-defaulting U.S. Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the U.S. Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such
Date of Delivery shall terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
31
36
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either (i) the U.S. Representatives or (ii) any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"U.S. Underwriter" includes any person substituted for a U.S. Underwriter under
this Section 10.
SECTION 11. Default by one or more of the Selling Shareholders. (a) If
a Selling Shareholder shall fail at Closing Time or at a Date of Delivery to
sell and deliver the number of Securities which such Selling Shareholders are
obligated to sell hereunder, and the remaining Selling Shareholders do not
exercise the right hereby granted to increase, pro rata or otherwise, the number
of Securities to be sold by them hereunder to the total number to be sold by all
Selling Shareholders as set forth in Schedule B hereto, then the U.S.
Underwriters may, at option of the U.S. Representatives, by notice from the U.S.
Representatives to the Company and the non-defaulting Selling Shareholders,
either (i) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the non-defaulting Selling Shareholders have agreed to sell hereunder. No
action taken pursuant to this Section 11 shall relieve any Selling Shareholder
so defaulting from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the U.S. Representatives. the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives c/o Merrill Xxxxx at
North Tower, World Financial Center, New York, New York 10281-1201, attention of
Syndicate Operations, with a copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxx; notices to the Company and
Mettler shall be directed to the Company at Xxxxxxx-Xxxxxx International Inc.,
Im Langacher, X.X. Xxx XX-000, XX 0000 Xxxxxxxxxx, Xxxxxxxxxxx, Attention:
Xxxxxxx X. Xxxxxxxx, with a copy to Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, 0
Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Attention: Xxxxxxx X. Xxxxxxxx; and notices
to the Selling Shareholders shall be delivered to AEA Investors Inc., 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxxxxx X. Xxxxx, Esq.
32
37
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the U.S. Underwriters, the Company, Mettler and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the U.S. Underwriters, the Company, Mettler and the
Selling Shareholders and their respective successors and the controlling persons
and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company, Mettler and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the U.S.
Underwriters, the Company, Mettler and the Selling Shareholders in accordance
with its terms.
Very truly yours,
XXXXXXX-XXXXXX INTERNATIONAL INC.
By:
Name:
Title:
XXXXXXX-XXXXXX, INC.
By:______________________________
Name:
Title:
EACH OF THE SELLING SHAREHOLDERS LISTED ON
SCHEDULE B HERETO
By:______________________________
As Attorney-in-Fact acting on behalf of the
Selling Shareholders named in Schedule B hereto
34
39
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
_________________________________
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By ______________________________
Authorized Signatory
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
35
40
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
------------------------ ------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..........................................
Total.............................................................
============
Sch A - 1
41
SCHEDULE B
Maximum Number
Number of Initial of Option
Securities to be Securities to
Shareholder Name Sold be Sold
---------------- ----------------- --------------
Total
Sch B - 1
42
SCHEDULE C
Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $______ .
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $ ______, being an amount equal to the
initial public offering price set forth above less $_____ per share; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
Sch C - 1
43
SCHEDULE D
List of persons and entities
subject to lock-up
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxx
Xxxxx Xxxxxxxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxxxx Z.Y. Moh
Xxxxx X. Xxxxxx
Each of the Selling Shareholders listed on Schedule B hereto.
Sch D - 1
44
SCHEDULE E
List of Selling Shareholders
delivering opinions pursuant
to Sections 5(f) and 5(q)(v)
[To Come ]
Sch E - 1
45
Exhibit A
FORM OF OPINION OF FRIED, FRANK,
HARRIS, XXXXXXX & XXXXXXXX TO BE
DELIVERED PURSUANT TO SECTION 5(b)
___________ , 199_
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
__________________________
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx International
__________________________
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx, XX0X 0XX
Ladies and Gentlemen:
We are acting as special U.S. counsel to Xxxxxxx-Xxxxxx International
Inc., a Delaware corporation (the "Company"), in connection with the
underwritten public offerings of _____________ shares of the Company's Common
Stock (the "Shares"), pursuant to (i) a Purchase Agreement (the "U.S. Purchase
Agreement"), dated as of __________, 199_, among the Company, certain
shareholders of the Company listed on Schedule B to the U.S. Purchase Agreement
(the "Selling, Shareholders"), Xxxxxxx-Xxxxxx, Inc, a Delaware corporation
("Mettler"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, _______________ as representatives of the U.S. Underwriters, and
(ii) an International Purchase Agreement (the "International Purchase
Agreement," and together with the U.S. Purchase Agreement, the "Purchase
Agreements"), dated as of ________________, 199_, among the Company, the Selling
Shareholders, Mettler and Xxxxxxx Xxxxx International, ________________________,
as representatives of the International Managers. This opinion is being
delivered pursuant to Section 5(b) of each of the Purchase Agreements and
simultaneously with the payment by
A-1
46
the Underwriters to the Selling Shareholders for the Shares. Except as
provided herein, all capitalized terms used herein which are defined in the
Purchase Agreement have the respective meanings specified therein. With your
permission, all assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to the
extent otherwise expressly stated, and we express no opinion with respect to the
subject matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company, its subsidiaries and the Selling Shareholders, such certificates of
public officials and such other documents, and (iii) reviewed such information
from officers and representatives of the Company and its subsidiaries, Selling
Shareholders and others, in each case, as we have deemed necessary or
appropriate for the purposes of this opinion. In all such examinations, we have
assumed the legal capacity of all natural persons executing documents, the
genuineness of all signatures on original or certified copies, the authenticity
of all original or certified copies and the conformity to original or certified
documents of all copies submitted to us as conformed or reproduction copies. As
to various questions of fact relevant to the opinions expressed herein, we have
relied upon, and assume the accuracy of, the statements made in the certificates
of officers of the Company and its subsidiaries and the Selling Shareholders
delivered to us, the representations and warranties contained in the Purchase
Agreements and the Custody Agreements and certificates and oral or written
statements and other information of or from public officials and officers and
representatives of the Company, its subsidiaries, Selling Shareholders and
others, and assume compliance on the part of all parties to the Purchase
Agreements with their covenants and agreements contained therein. With respect
to the opinions expressed in paragraph 3 below, we have relied solely upon a
certificate or certificates of public officials of such jurisdictions, copies of
which have been provided to you. With respect to the opinion expressed in
paragraph 7 below regarding the effectiveness of the Registration Statement and
the absence of any stop orders or proceedings for that purpose, we are relying
upon the oral advice of the staff of the U.S. Securities and Exchange Commission
(the "Commission"). To the extent it may be relevant to the opinions expressed
herein, (i) we have assumed that the Power of Attorney and Custody Agreement of
each Selling Shareholder has been duly authorized, executed and delivered by
each party thereto and constitutes a valid and binding agreement of each such
party other than such Selling Shareholder and (ii) we are relying upon oral
advice of the staff of the Securities and Exchange Commission (the "Commission")
that the Commission has issued an order declaring the Registration Statement
(File No. _________) effective.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
A-2
47
1. The Company has been duly incorporated and the Company and
Mettler are validly existing as corporations in good standing under the
laws of the State of Delaware.
2. Each of the Company and Mettler has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under the Purchase Agreements.
3. Each of the Company and Mettler is duly qualified as a
foreign corporation to transact business and is in good standing in the
states listed on Schedule I to this opinion.
4. The authorized capital stock of the Company is as set forth
in the Prospectuses under the caption "Capitalization."
5. All the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly
authorized and are validly issued, fully paid and non-assessable.
6. Each of the Purchase Agreements has been duly authorized,
executed and delivered by the Company and Mettler.
7. The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectuses pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
8. The Registration Statement, including the Rule 430A
Information and the Prospectuses as of their respective effective or
issue dates (other than the financial statements, notes and schedules
thereto and other financial data included therein or omitted therefrom,
as to which we express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
9. The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable requirements of
the Delaware General Corporation Law, with any applicable requirements
of the Amended and Restated Certificate of Incorporation and amended
By-laws of the Company and the requirements of the NYSE.
X-0
00
00. The information in the Prospectuses under "Description of
Capital Stock," "Description of Credit Agreement "and "Certain United
States Federal Tax Considerations For Non-United States Holders" and in
the Registration Statement under Item 15, in each case to the extent
that such information constitutes matters of law, summaries of legal
matters or documents, has been reviewed by us and is correct in all
material respects.
11. To our knowledge, there is not pending or threatened any
action, suit, proceeding inquiry or investigation, to which the Company
or Mettler is a party, or to which the property of the Company or
Mettler is subject, before or brought by any New York, Delaware or
federal court or New York, Delaware or federal governmental agency or
body, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in
the Purchase Agreements.
12. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any New York,
Delaware or federal court or governmental authority or New York,
Delaware or federal agency, is necessary or required in connection with
the due authorization, execution and delivery of the Purchase
Agreements or for the offering, sale or delivery of the Shares except
such as have been obtained or as may be required under the 1933 Act or
the 1933 Act Regulations and foreign or state securities or blue sky
laws.
13. The execution and delivery by the Company and Mettler of,
and the performance by their Company and Mettler of their obligations
under, the Purchase Agreements did not and will not (i) contravene any
provision of the certificates of incorporation and by-laws, in each
case as amended, as the case may be, of the Company or Mettler, (ii)
contravene any agreement or other instrument binding upon the Company
or any of its subsidiaries that is listed as an exhibit to the
Registration Statement or (iii) violate (x) any present statute, rule
or regulation of any governmental agency or authority of the United
States of America or the State of New York or Delaware (as it relates
to the General Corporation Law of the State of Delaware) applicable to
the Company or any subsidiary, or (y) any judgment or decree or order
of any court or governmental agency or body of the United States of
America or the State of New York or Delaware (as it relates to the
General Corporation Law of the State of Delaware) known to us;
provided, however, that we express no opinion with respect to any
violation, breach or default arising under or based upon any
cross-default provision insofar as such violation relates to a default
under an agreement that is not an exhibit to the Registration
Statement.
X-0
00
00. The Company is not an "investment company" as such term is
defined in the 1940 Act.
15. The Purchase Agreements have been duly authorized,
executed and delivered by or on behalf of the Selling Shareholders.
16. The Power of Attorney and Custody Agreement of each
Selling Shareholder constitutes a valid and binding agreement of such
Selling Shareholder, subject to limitations imposed by federal or state
securities laws or principles of public policy to enforcement of rights
to indemnification and contribution.
17. The execution and delivery by or on behalf of each Selling
Shareholder of, and the performance by such Selling Shareholder of its
obligations under, the Purchase Agreements and the Power of Attorney
and Custody Agreement of such Selling Shareholder will not contravene
any provision of the laws of the State of Delaware (as it relates to
the General Corporation Law of the State of Delaware), the State of New
York or the federal laws of the United States applicable to each
Selling Shareholder, provided that the foregoing opinion is limited to
such laws which, in our experience, are normally applicable to public
offerings of securities of the type contemplated by the Purchase
Agreements excluding laws that are applicable to any Selling
Shareholder solely because of its specific status (including regulatory
status), other than its status as a selling shareholder.
18. No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General
Corporation Law of the State of Delaware), State of New York or any
federal governmental body or agency is required for the performance by
such Selling Shareholder of its obligations under the Purchase
Agreements or the Power of Attorney and Custody Agreement of such
Selling Shareholder, except such as have been obtained under the 1933
Act or such as may be required by the securities or blue sky laws, in
connection with the purchase and distribution of the Shares by the U.S.
Underwriters, provided that the foregoing opinion is limited to such
consents, approvals, authorizations, orders or qualifications which, in
our experience, are normally applicable to public offerings of
securities of the type contemplated by the Purchase Agreements
excluding consents, approvals, authorizations, orders or qualifications
that are applicable to any Selling Shareholder solely because of its
specific status (including regulatory status), other than its status as
a selling shareholder.
19. Upon (i) payment for the Shares as provided in the
Purchase Agreements, (ii) registration of the transfer of the Shares
to, and registration of the Shares in the name of, Cede & Co. ("Cede")
or such other nominee as may be designated by the Depository Trust
Company ("DTC") and (iii) the crediting of
A-5
50
the Shares on the books of DTC to the securities accounts
(within the meaning of Section 8-501 of the Uniform Commercial Code as
currently in effect in the State of New York ("the UCC")) of the
various Underwriters (assuming that each of the Underwriters lacks
notice of any "adverse claim" (within the meaning of Section 8-102 of
the UCC) to the Shares), (a) the Underwriters will acquire valid
"security entitlements" in respect of the Shares (within the meaning of
Section 8-102 of the UCC) and (b) no action based on any "adverse
claim" (within the meaning of Section 8-102 of the UCC) to the Shares
may be asserted against the Underwriters with respect to such security
entitlements.
In addition, in the course of the preparation by the Company of the
Registration Statement and the Prospectuses, we participated in conferences with
certain of the officers and representatives of, and the independent public
accountants for, the Company, at which the Registration Statement and the
Prospectuses were discussed. Between the date of effectiveness of the
Registration Statement and the time of delivery of this letter, we attended
additional conferences with certain of the officers and representatives of the
Company, at which the contents of the Registration Statement and Prospectuses
were discussed to a limited extent. Given the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process, we are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectuses, except as specified
in paragraph 10. Subject to the foregoing and on the basis of the information
gained in the performance of the services referred to above, including
information obtained from officers and other representatives of, and the
independent public accountants for, the Company, no facts have come to our
attention that cause us to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectuses as of their
date contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Also, subject to the foregoing, no facts have come to our
attention in the course of proceedings described in the second sentence of this
paragraph that cause us to believe that the Prospectuses, as of the date and
time of delivery of this letter, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances in which
they were made, not misleading. We express no view or belief, however, with
respect to financial statements, notes or schedules thereto or other financial
data included in or omitted from the Registration Statement or Prospectuses.
The opinions set forth above are subject to the following additional
qualifications and assumptions:
A-6
51
(A) Our opinion is subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws now or hereafter in effect affecting creditors' rights generally and (ii)
general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether such
principles are considered in a proceeding at law or equity.
(B) Our opinion is subject to the effect of, and we express no opinion
with respect to the application of or compliance with, state securities or Blue
Sky laws.
(C) For purposes of paragraphs 12, 13, 17 and 18 above, we have
reviewed only those statutes, rules and regulations that in our experience are
applicable to transactions of the type contemplated by the Purchase Agreements
or for the offering, issuance, sale or delivery of the Shares.
(D) For purposes of the opinion set forth in paragraph 11 above, we
have endeavored, to the extent we have believed necessary, to determine from
lawyers currently in our firm who have performed substantive legal services for
the Company and Mettler whether such services involved substantive attention in
the form of legal representation concerning pending legal proceedings of the
nature referred to in such paragraph 11 and we have not made any review, search
or investigation of public files or records or files or records of the Company
or Mettler, or of their transactions, or any other investigation or inquiry with
respect to such opinion.
(E) We have assumed for purposes of the opinion set forth in paragraph
19 that (i) the registration of the transfer of the Shares to, and the
registration of the Shares in the name of, Cede or another nominee designated by
DTC, in each case on the Company's share transfer records, have been effected in
accordance with the Company's Certificate of Incorporation and By-laws and with
Delaware law, (ii) DTC is registered as a "clearing corporation" within the
meaning of Section 8-102 of the UCC and (iii) DTC's "securities intermediary's
jurisdiction" (within the meaning of Section 8-110(e) of the UCC) with respect
to securities accounts established by DTC and any security entitlements in
respect of the financial assets credited thereto is the State of New York.
The opinions expressed herein are limited to the federal laws of the
United States of America and the laws of the State of New York, and to the
extent relevant to the opinions expressed above the General Corporation Law of
the State of Delaware, as currently in effect. To the extent such opinion
contains assumptions, conditions and limitations we arc incorporating such
assumptions, conditions and limitations herein. We assume no obligations to
supplement this letter if any applicable laws change after the date hereof or if
we become aware of any facts that might change the opinions expressed herein
after the date hereof.
A-7
52
The opinions expressed herein are solely for your benefit and may not
be relied upon in any manner or for any purpose by any other person and may not
be quoted in whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
A-8
53
SCHEDULE I
Xxxxxxx-Xxxxxx International Inc.
None
Xxxxxxx-Xxxxxx, Inc.
[To Come]
54
Exhibit B
FORM OF LOCAL COUNSEL OPINION TO BE
DELIVERED PURSUANT TO SECTIONS 5(c) AND (d)
i Each of [names of local subsidiaries] (collectively, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation [in good standing]1 under laws of ______________, and has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses; all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, to our knowledge, is owned by ____________;
to our knowledge, none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary arising under the laws of __________________
for the charter or by-laws of such Subsidiary.
ii The execution, delivery and performance of the U.S. Purchase
Agreement and the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the International
Purchase Agreement and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use Of
Proceeds"), and the compliance by the Company, Holdings, and Mettler with their
respective obligations under the U.S. Purchase Agreement and the International
Purchase Agreement, do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined in Section 1(a)(x) of the Purchase
Agreements) under, or result in the creation or imposition of any Liens upon any
property or assets of any Subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which a Subsidiary is a party or by
which any of them may be bound, or to which any of the property or assets of the
Subsidiaries is subject (except for Liens under the Credit Agreement and the
Working Capital Facilities and such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or by-laws
of the Subsidiaries, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court of _________________ having jurisdiction over the
Subsidiaries or any of their respective properties, assets or operations.
--------
1 If concept is recognized in local jurisdiction.
B-1
55
Exhibit C
FORM OF OPINION OF XXXXXXXXX X. XXXXX, ESQ. TO BE
DELIVERED PURSUANT TO SECTION 5(E)
(i) To my knowledge, the Company is not in violation of its Amended and
Restated Certificate of Incorporation or amended By-laws.
(ii) To my knowledge, there are no persons with registration rights or
other similar rights arising under the Amended and Restated Certificate of
Incorporation or amended By-laws of the Company or the corporation laws of the
State of New York, Delaware General Corporation Law or United States federal
securities laws to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act, except for
persons who have waived such rights or whose shares are included in the
Registration Statement.
(iii) The Custody Agreement and Power of Attorney of such Selling
Stockholder has been duly authorized, executed and delivered by or on behalf of
each Selling Stockholder.
(iv) The execution, delivery and performance of the U.S. Purchase
Agreement, the International Purchase Agreement and the Custody Agreement and
Power of Attorney by or on behalf of such Selling Stockholder have been duly
authorized by all necessary action on the part of such Selling Stockholder and,
if applicable, do not and will not result in a violation of the charter or
by-laws of such Selling Stockholder, and, to the best of such counsel's
knowledge, without independent investment other than inquiry of such Selling
Stockholder, do not and will not contravene or constitute a default under (A)
any statute, rule or regulation relating to such Selling Stockholder or its
legal or regulatory status, (B) any material judgment, order, decree, injunction
or regulation of any court or governmental agency or body, domestic or foreign,
having jurisdiction over the Selling Stockholder or (C) any material contract,
agreement or other instrument to which such Selling Stockholder is a party or by
which it is bound.
C-1
56
Exhibit D
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER(S)
TO BE DELIVERED PURSUANT TO SECTION 5(f)
(Capitalized terms have the meaning given to them
in the U.S. Purchase Agreement)
(i) The Custody Agreement and Power of Attorney of such Selling
Stockholder has been duly authorized, executed and delivered by or on behalf of
each Selling Stockholder.
(ii) The execution, delivery and performance of the U.S. Purchase
Agreement, the International Purchase Agreement and the Custody Agreement and
Power of Attorney by or on behalf of such Selling Stockholder have been duly
authorized by all necessary action on the part of such Selling Stockholder and,
if applicable, do not and will not result in a violation of the charter or
by-laws of such Selling Stockholder, and, to the best of such counsel's
knowledge, without independent investment other than inquiry of such Selling
Stockholder, do not and will not contravene or constitute a default under (A)
any statute, rule or regulation relating to such Selling Stockholder or its
legal or regulatory status, (B) any material judgment, order, decree, injunction
or regulation of any court or governmental agency or body, domestic or foreign,
having jurisdiction over the Selling Stockholder or (C) any material contract,
agreement or other instrument to which such Selling Stockholder is a party or by
which it is bound.
D-1
57
Exhibit E
[Letterhead of Xxxxxxx-Xxxxxx International Inc..]
Litigation Certificate
The undersigned, Xxxxxxx X. Xxxxxxxx, hereby certifies that he is the
Chief Financial Officer and Xxxxx Xxxxxxxxxx, hereby certifies that he is the
General Counsel of Xxxxxxx-Xxxxxx International Inc., a Delaware corporation
(the "Company"), and that, as such, we are authorized to execute and deliver
this Certificate on behalf of the Company and, with reference to the Section
5(j) of the U.S. Purchase Agreement (the "U.S. Purchase Agreement"), dated
_________________, among the Company, Xxxxxxx-Xxxxxx, Inc. ("Xxxxxxx-Xxxxxx"), a
Delaware corporation, the Selling Shareholders listed in Schedule B thereto,
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
_________________, as representatives of the underwriters listed in Schedule A
to the U.S. Purchase Agreement, and Section 5(j) of the International Purchase
Agreement (the "International Purchase Agreement" and together with the U.S.
Purchase Agreement, the "Purchase Agreements"), dated ______________, 199_,
among the Company, Xxxxxxx-Xxxxxx, the Selling Shareholders listed in Schedule
__ thereto, Xxxxxxx Xxxxx International, ____________________, as lead managers
to the underwriters listed in Schedule A to the International Purchase
Agreement, further certify, represent and warrant on behalf of the Company as
follows (each capitalized term used herein without definition having the same
meaning specified in the Purchase Agreements):
(a) to the best of our knowledge, based upon certifications made by
officers of the Company and its subsidiaries in the form attached
hereto as Exhibit A, the undersigned have set forth in Exhibit B
attached hereto all actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency or
body, domestic or foreign, pending or threatened against or affecting
the Company or any of its subsidiaries, at the [Closing Time][Date of
Delivery], where the maximum level of liability is equal to or greater
than $250,000;
(b) we further certify, represent and warrant on behalf of the Company
that none of such actions, suits, proceedings, inquiries or
investigations set forth in Exhibit B would reasonably be expected to
have a Material Adverse Effect or would reasonably be expected to
materially or adversely affect the property or assets of the Company or
its subsidiaries or the consummation of the transactions contemplated
in the Purchase Agreements or the performance by the Company or
Xxxxxxx-Xxxxxx of its obligations hereunder or thereunder; and
E-1
58
(c) to the best of our knowledge, except as set forth on Exhibit B
hereto, there are no actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency or
body, domestic or foreign, pending or threatened against or affecting
the Company or its subsidiaries, at the [Closing Time][Date of
Delivery], where the maximum level of liability is equal to or greater
than $250,000 or that would otherwise be reasonably expected to
materially or adversely affect the property or assets of the Company or
its subsidiaries or the consummation of the transactions contemplated
in the Purchase Agreements or the performance by the Company or
Xxxxxxx-Xxxxxx of its obligations hereunder and thereunder.
E-2
59
WITNESS the signature of the undersigned this _____day of _______________,199_.
_____________________________________
By: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
_____________________________________
By: Xxxxx Xxxxxxxxxx
Title: General Counsel
X-0
00
Xxxxxxx X
[FORM OF LOCK-UP PURSUANT TO SECTION 5(o)]
________________, 199_
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
___________________________
as Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XXXXXXX XXXXX INTERNATIONAL
___________________________
as Representatives of the several International Underwriters
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx, XX0X 0XX
Xxxxxxx-Xxxxxx International Inc.
Xx Xxxxxxxxx
X.X. Xxx XX-000
XX 0000, Xxxxxxxxxx, Xxxxxxxxxxx
Re: Proposed Public Offering Xxxxxxx-Xxxxxx International Inc.
Dear Sirs:
The undersigned, a [stockholder] [and an officer and/or director] of
Xxxxxxx-Xxxxxx International Inc., a Delaware corporation (the "Company"),
understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), ____________________ propose to enter into a
U.S. Purchase Agreement (the "U.S. Purchase Agreement") with the Company and the
Selling Shareholders, and Xxxxxxx Xxxxx International, ________________ propose
to enter into an International Purchase Agreement (the "International Purchase
Agreement") with the Company and the Selling Shareholders, each providing for
the public offering (the "Offerings") of shares (the "Securities") of the
Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder [and an officer and/or director] of the Company,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each underwriter to
be named in the U.S. Purchase Agreement or the International Purchase
F-1
61
Agreement that, during a period of 90 days from the date of the U.S.
Purchase Agreement, the undersigned will not, without the prior written consent
of Xxxxxxx Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock
(except through gifts to persons, trusts or other entities who agree in writing
to be bound by the restrictions of this letter), or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing, or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise; provided, however, that (i) the Company may file a
registration statement on Form S-8 under the Securities Act of 1933 relating to
Common Stock of the Company issued pursuant to the Company's stock option plan
(the "Stock Plan"), and (ii) employees of the Company may exercise rights to
acquire Common Stock pursuant to the Stock Plan.
Sincerely,
IF INDIVIDUAL:
Print Name
Signature
IF CORPORATION, PARTNERSHIP OR TRUST:
[print or type name of entity]
By:
Name:
Title:
F-2
