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EXHIBIT 1.1
__________ Shares
▇▇▇▇▇ ▇▇▇▇▇▇ N.V.
Common Stock
(nominal value ____ NLG per share)
UNDERWRITING AGREEMENT
____________, 1998
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FORM OF UNDERWRITING AGREEMENT
__________, 1999
WARBURG DILLON READ LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
as Managing U.S. Underwriters
c/o WARBURG DILLON READ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
UBS AG, acting through its division Warburg Dillon Read
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
as Managing International Underwriters
c/o UBS AG, acting through its division Warburg Dillon Read
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
▇▇▇▇▇ ▇▇▇▇▇▇ Industries Ltd., an Australian corporation (the "SELLING
SHAREHOLDER"), proposes to sell to several Underwriters (as defined below) an
aggregate of _______ shares (the "FIRM SHARES") of common stock (nominal value
________ NLG per share) (the "COMMON STOCK") of ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., a Netherlands
corporation (the "COMPANY").
It is understood that, subject to the conditions hereinafter stated,
________ Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule A hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between Underwriters of even date herewith), and ________ Firm Shares
(the "INTERNATIONAL SHARES") will be sold to the several International
Underwriters named in Schedule B hereto (the "INTERNATIONAL UNDERWRITERS") in
connection with the offering and sale of such International Shares outside of
the United States and Canada to persons other than United States and Canadian
Persons. Warburg Dillon Read LLC, Credit Suisse First Boston Corporation and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall act as representatives
(the "MANAGING U.S. UNDERWRITERS") of the several U.S. Underwriters, and UBS AG
("UBS AG"), acting though its division Warburg
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▇▇▇▇▇▇ Read, Credit Suisse First Boston (Europe) Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇
International shall act as representatives (the "MANAGING INTERNATIONAL
UNDERWRITERS" and, together with the Managing U.S. Underwriters, the "MANAGING
UNDERWRITERS") of the several International Underwriters. The U.S. Underwriters
and the International Underwriters are hereinafter collectively referred to as
the "UNDERWRITERS".
In addition, solely for the purpose of covering over-allotments, the
Selling Shareholder proposes to grant to the several U.S. Underwriters the
option to purchase from the Selling Shareholder up to an additional __________
shares of Common Stock (the "ADDITIONAL SHARES"). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the
"SHARES". The Shares are described in the Prospectus which is referred to below.
It is understood that on the Closing Date (as defined herein),
following the consummation of the Reorganization (as such term is defined in the
Prospectus), the Company will be a wholly-owned subsidiary of the Selling
Shareholder. In connection with the Reorganization and pursuant to the Purchase
Agreements among the Selling Shareholder, certain of its subsidiaries, the
Company and certain of its subsidiaries dated as of ___________, 1998 (the
"PURCHASE AGREEMENTS"), the Selling Shareholder and certain of its subsidiaries
will transfer to the Company and certain of its subsidiaries its fiber cement,
gypsum wallboard, building systems and windows businesses (collectively, the
"TRANSFERRED BUSINESSES") and will retain its other non-core businesses and
certain specified liabilities, including its asbestos liabilities and
liabilities assumed in connection with the sale of certain former lines of
business (collectively, the "RETAINED LIABILITIES"). Also, in connection with
the Reorganization, pursuant to the Lease Agreements among the Company and
certain of it subsidiaries and the Selling Shareholder and certain of its
subsidiaries dated as of _________, 1998 (the "LEASE AGREEMENTS"), the Selling
Shareholder and certain of its subsidiaries will lease certain of their
properties to the Company and certain of its subsidiaries. Pursuant to the
Purchase Agreements and the Lease Agreements, the Selling Shareholder and
certain of its subsidiaries will indemnify the Company and certain of its
subsidiaries for certain liabilities arising out of the operations of the
Selling Shareholder, its subsidiaries or any other entities in which any of them
hold or held any ownership interest prior to the Reorganization (the
"INDEMNITY"). Concurrent with the issuance of the Firm Shares, the Company and
the Selling Shareholder will enter into a Reimbursement Agreement (the
"REIMBURSEMENT AGREEMENT"). Additionally, pursuant to the Reorganization, the
Company will form a Dutch wholly-owned international finance service center
subsidiary (the "DFSC") which will complete a private placement of unsecured
senior debt to institutional investors (the "NOTES") and enter into a new bank
term loan and revolving credit facility (the "BANK FACILITIES" and, together
with the
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Notes, the "DEBT REFINANCING"), both of which will close concurrently with the
closing hereunder.
Additionally, the Company and the Selling Shareholder will enter into a
Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT") concurrently
with the sale of the Shares. Pursuant to the Registration Rights Agreement,
under the circumstances and the terms set forth therein, the Company will agree
to file with the Securities and Exchange Commission (the "COMMISSION") a
registration statement to register the unregistered shares of the Company held
by the Selling Shareholder.
The closing of the Shares offered hereunder is contingent upon the
consummation of the Reorganization. This Agreement, the Purchase Agreements, the
Lease Agreements, the Reimbursement Agreement, the Registration Rights Agreement
and the Debt Refinancing are hereinafter referred to collectively as the
"OPERATIVE DOCUMENTS". The Company, the Selling Shareholder and each of their
subsidiaries which are party to any of the Operative Documents are hereinafter
referred to collectively as the "JH PARTIES."
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "ACT"), with the Commission a registration statement on
Form F-1, including a prospectus, relating to the Shares. The Company has
furnished to you, for use by the Underwriters and by dealers, copies of one or
more preliminary prospectuses (each thereof being herein called a "PRELIMINARY
PROSPECTUS") relating to the Shares. The term "Preliminary Prospectus" shall
refer to both the U.S. preliminary prospectus (the "U.S. PRELIMINARY
PROSPECTUS") to be used in connection with the offering and sale of the U.S.
Firm Shares in the United States and Canada to United States and Canadian
Persons and the international preliminary prospectus (the "INTERNATIONAL
PRELIMINARY PROSPECTUS") to be used in connection with the offering and sale of
the International Firm Shares outside the United States and Canada to persons
other than United States and Canadian Persons. Except where the context
otherwise requires, the registration statement, as amended when it becomes
effective, including all documents filed as a part thereof, and including any
information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Act and deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430(A) under the Act and
also including any registration statement filed pursuant to Rule 462(b) under
the Act, is herein called the "REGISTRATION STATEMENT", and the prospectus, in
the form filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
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the time it became effective, is herein called the "PROSPECTUS". The term
"PROSPECTUS" shall refer to both the U.S. prospectus (the "U.S. PROSPECTUS") to
be used in connection with the offering and sale of the U.S. Firm Shares in the
United States and Canada to United States and Canadian Persons and the
international prospectus (the "INTERNATIONAL PROSPECTUS") to be used in
connection with the offering and sale of the International Shares outside the
United States and Canada to persons other than United States and Canadian
Persons.
The Company, the Selling Shareholder and the Underwriters agree as
follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Selling
Shareholder agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Shareholder the respective number of Firm Shares (subject to such adjustment as
you may determine to avoid fractional shares) which bears the same proportion to
the number of Firm Shares to be sold by the Selling Shareholder as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A or B
hereto bears to the total number of Firm Shares to be sold by the Selling
Shareholder at a purchase price of $_____ per Share. The Selling Shareholder is
advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Shares upon the terms set forth in the Prospectus. You may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
In addition, the Selling Shareholder hereby grants to the several U.S.
Underwriters the option to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
U.S. Underwriters shall have the right to purchase, severally and not jointly,
from the Selling Shareholder, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Selling Shareholder for the Firm Shares. This option may
be exercised by you on behalf of the several Underwriters at any time (but not
more than once) on or before the thirtieth day following the date hereof, by
written notice to the Selling Shareholder. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (such date
and time being herein
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referred to as the "ADDITIONAL TIME OF PURCHASE"); provided, however, that the
additional time of purchase shall not be earlier than the time of purchase (as
defined below) nor earlier than the second business day(1) after the date on
which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each U.S. Underwriter shall be the number which
bears the same proportion to the aggregate number of Additional Shares being
purchased as the number of Firm Shares set forth opposite the name of such U.S.
Underwriter on Schedule A hereto bears to the total number of U.S. Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Selling Shareholder by Federal Funds wire transfer,
against delivery of the certificates for the Firm Shares to you through the
facilities of the Depository Trust Company (DTC) for the respective accounts of
the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time, on __________, 1998 (unless another time shall be agreed to by
you, the Company and the Selling Shareholder or unless postponed in accordance
with the provisions of Section 10 hereof). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "TIME OF
PURCHASE." Certificates for the Firm Shares shall be delivered to you in
definitive form in such names and in such denominations as you shall specify on
the second business day preceding the time of purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Company agrees to make such certificates available to you for such purpose at
least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by the U.S. Managing Underwriters, the Company agrees
to make such certificates available to the Managing U.S. Underwriters for such
purpose at least one full business day preceding the additional time of
purchase.
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(1) As used herein "business day" shall mean a day on which the
New York Stock Exchange is open for trading.
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3. Representations and Warranties of the Company and of the Selling
Shareholder. The Company and the Selling Shareholder, jointly and severally,
represent and warrant to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose,
and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act; and
when the Registration Statement became effective, the Registration
Statement and the Prospectus fully complied in all material respects
with the provisions of the Act, and the Registration Statement did not
contain an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus did not contain
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
have been so described or filed; provided, however, that each of the
Company and the Selling Shareholder makes no warranty or representation
with respect to any statement contained in the Registration Statement
or the Prospectus in reliance upon and in conformity with information
concerning the Underwriters and furnished in writing by or on behalf of
any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus; and the Company has not
distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or any other materials, if any,
permitted by the Act;
(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase
and the additional time of purchase, as the case may be, the Company
shall have an authorized capitalization as set forth under the heading
entitled "As Adjusted" in the section of the Registration Statement and
the Prospectus entitled "Capitalization"; all of the issued and
outstanding shares of capital stock including the Common Stock have
been duly and validly authorized and issued and are fully paid and
non-assessable have been issued in compliance with all federal and
state securities laws and were not issued in
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violation of any preemptive right, resale right, right of first refusal
or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of The
Netherlands, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not
have a material adverse effect on the business, properties, financial
condition or results of operation of the Company and its Subsidiaries
(as hereinafter defined) taken as a whole (a "MATERIAL ADVERSE
EFFECT"). The Company has no subsidiaries (as defined in the Rules and
Regulations) other than the subsidiaries listed on Schedule C hereto
(collectively, the "SUBSIDIARIES"); other than the Subsidiaries, the
Company does not own, directly or indirectly, any shares of stock or
any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture,
association or other entity; complete and correct copies of the
articles of association or certificates of incorporation, as the case
may be, and of the bylaws of the Company and the Subsidiaries and all
amendments thereto have been delivered to you, and except as set forth
in the exhibits to the Registration Statement no changes therein will
be made subsequent to the date hereof and prior to the time of purchase
or, if later, the additional time of purchase; each Subsidiary has been
duly incorporated (or organized, in the case of a trust) and is validly
existing as a corporation (or trust, as the case may be) in good
standing under the laws of the jurisdiction of its incorporation (or
organization, in the case of a trust), with full power and authority of
a corporation (or trust, as the case may be) to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement; each Subsidiary is duly qualified to do
business as a foreign corporation (or trust, as the case may be) in
good standing in each jurisdiction where the ownership or leasing of
the properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect; all of the outstanding shares of capital stock
(or ownership interest, in the case of a trust) of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and (except as otherwise described in this
Section 3(d)) are owned by the Company subject to no security interest,
other encumbrance or adverse claims; no
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options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding;
(e) the Company and each of its Subsidiaries are duly qualified
or licensed by and are in good standing in each jurisdiction in which
they conduct their respective businesses and in which the failure,
individually or in the aggregate, to be so licensed or qualified could
have a Material Adverse Effect; and the Company and each of its
Subsidiaries are in compliance in all material respects with the laws,
orders, rules, regulations and directives issued or administered by
such jurisdictions;
(f) neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would result in any breach of, or constitute a
default under), its respective charter, articles of association or
organizational document, as the case may be, or by-laws or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them or any of
their properties is bound, and the execution, delivery and performance
of this Agreement and each other Operative Document by the Company and
each of its Subsidiaries which it is a party thereto and compliance by
each such party with all the provisions thereof, the consummation by
them of the transactions contemplated hereby and thereby and the
consummation by them of the Reorganization will not conflict with, or
result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any provisions of the
charter, articles of association or organizational document, as the
case may be, or by-laws, of the Company or any of its Subsidiaries or
under any provision of any license, indenture, mortgage, deed of trust,
bank loan or credit agreement, or other evidence of indebtedness, or
any lease, contract or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of its Subsidiaries;
(g) this Agreement and each of the Operative Documents have been
duly and validly authorized, executed and delivered by the Company and
each of its Subsidiaries which is a party thereto, and are legal, valid
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and binding agreements of the Company and such Subsidiaries, as the
case may be, enforceable in accordance with their terms;
(h) the Company and its Subsidiaries, as applicable, have all
requisite corporate power and authority to execute, deliver and perform
its respective obligations under this Agreement and the other Operative
Documents and to consummate the Reorganization including, but not
limited to, the purchase of the Transferred Businesses and the Debt
Refinancing;
(i) the Reorganization has been duly and validly authorized by
all requisite corporate action on the part of the Company and each of
its Subsidiaries;
(j) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus and the certificates for
the Shares are in due and proper form and the holders of the Shares
will not be subject to personal liability by reason of being such
holders;
(k) the Shares have been duly and validly authorized and, when
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable;
(l) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance of the Operative Documents
by the Company and each of its Subsidiaries party thereto and
compliance by the Company and such Subsidiaries with all the provisions
thereof, the consummation by the Company of the transactions
contemplated thereby, the consummation by the Company and its
Subsidiaries of the Reorganization and the transactions contemplated
thereby and the sale of the Shares as contemplated hereby other than
registration of the Shares under the Act; any necessary qualification
under the securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters, the rules and
regulations of the National Association of Securities Dealers, Inc.
("NASD") or such as may be required by the securities laws of any
jurisdiction outside the United States of America, The Netherlands and
Australia;
(m) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares
of
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capital stock of the Company upon the sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, co-
sale rights, rights of first refusal or other rights to purchase any of
the Shares [other than those that have been expressly waived prior to
the date hereof];
(n) PricewaterhouseCoopers LLP, whose report on the consolidated
financial statements of the ▇▇▇▇▇ ▇▇▇▇▇▇ Businesses (as such term is
defined in the Registration Statement) is filed with the Commission as
part of the Registration Statement and Prospectus, are independent
public accountants as required by the Act and the applicable published
rules and regulations thereunder;
(o) the pro forma financial statements of the Company, and the
related notes thereto, included in the Prospectus present fairly in all
material respects the pro forma financial position of the Company, as
of the dates indicated and the results of their operations for the
periods specified; the pro forma combined financial information, and
the related notes thereto, included in the Prospectus has been prepared
in accordance with the applicable requirements of the Exchange Act and
is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(p) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business; neither the Company nor any of its Subsidiaries is
in violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or any of its Subsidiaries the effect of which could have a
Material Adverse Effect;
(q) the Company and its Subsidiaries own or possess, or can
acquire on reasonable terms, all material 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 and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the
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subject of an unfavorable decision, ruling or finding, would result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole;
(r) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(s) there are no actions, suits, claims, investigations or
proceedings pending or threatened against the Company or any of its
Subsidiaries or any of their respective officers is a party or of which
any of their respective properties is subject at law or in equity, or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which could
result in a judgment, decree or order having a Material Adverse Effect
or prevent consummation of the transactions contemplated hereby;
(t) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows and changes in financial position of the Company and its
Subsidiaries for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved
and with respect to those Subsidiaries incorporated outside of the
United States, in conformity with any and all regulatory requirements
applicable to each such Subsidiary in its respective relevant
jurisdictions;
(u) the Company and each of its Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
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(v) the Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and there is no
tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company or any Subsidiary except
such asserted or threatened deficiencies that would not reasonably be
expected to have a Material Adverse Effect;
(w) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change or any development which, in
the Company's reasonable judgment, is likely to cause a material
adverse change in the business, properties or assets described or
referred to in the Registration Statement, or the results of
operations, condition (financial or otherwise), business or operations,
of the Company or its Subsidiaries, taken as a whole, (ii) any
transaction, which is material to the Company or its Subsidiaries,
except transactions in the ordinary course of business, (iii) any
obligation, direct or contingent, which is material to the Company and
its Subsidiaries taken as a whole incurred by the Company or its
Subsidiaries, except obligations incurred in the ordinary course of
business, (iv) any change in the capital stock or outstanding
indebtedness of the Company or its Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of
the Company. Neither the Company nor its Subsidiaries has any material
contingent obligation which is not disclosed in the Registration
Statement;
(x) the Company has obtained the agreement of the Selling
Shareholder and of each of its directors and officers not to sell,
offer or agree to sell, contract to sell, hypothecate, grant any option
to sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock of the Company or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other
rights to purchase Common Stock or any securities of the Company that
are substantially similar to the Common Stock for a period of 180 days
after the date of the Prospectus without Warburg Dillon Read LLC's [and
UBS AG's] prior written consent;
(y) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
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(z) the Company and its subsidiaries are in compliance with any
and all applicable foreign, federal, state and local laws (including
common law) and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect; and
(aa) there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a Material Adverse Effect.
4. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) the Selling Shareholder now is and at the time of delivery
of the Shares (whether the time of purchase or additional time of
purchase, as the case may be) will be, the lawful owner of the Shares
and has and, at the time of delivery thereof, will have valid and
marketable title to the Shares, and upon delivery of and payment for
the Shares (whether at the time of purchase or the additional time of
purchase, as the case may be), the Underwriters will acquire valid and
marketable title to the Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction
on transfer or other defect in title;
(b) the Selling Shareholder has and at the time of delivery of
the Shares (whether the time of purchase or additional time of
purchase, as the case may be) will have, full legal right, power and
capacity, and any approval required by law (other than those imposed by
the Act and the securities or blue sky laws of certain jurisdictions),
to sell, assign, transfer and deliver the Shares in the manner provided
in this Agreement;
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(c) each of the Operative Documents has been duly executed and
delivered by the Selling Shareholder and each of its subsidiaries party
thereto, and each is a legal, valid and binding agreement of the
Selling Shareholder and each of its subsidiaries party thereto,
enforceable in accordance with its terms;
(d) (i) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(e) there are no material agreements or arrangements relating to
the Company or its subsidiaries to which the Selling Shareholder, or to
the best of its knowledge, to which any direct or indirect shareholder
of the Selling Shareholder is a party, which are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits thereto that are not so described or filed;
(f) each of the Reorganization, this Agreement and each of the
other Operative Documents to which the Selling Shareholder is a party
has been duly authorized by all requisite corporate action on the part
of the Selling Shareholder; and
(g) upon consummation of the Reorganization (including the sale
of the Shares), the present fair salable value of the assets of the
Selling Shareholder will exceed the amount that will be required to be
paid on or in respect of its existing debts and other liabilities
(including contingent liabilities and the Retained Liabilities) as they
become absolute and matured.
5. Certain Covenants of the Company. The Company hereby agrees:
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(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(b) to make available to the Underwriters in New York City, on
or prior to 5:00 p.m., New York time, on the business day following the
date that the Registration Statement becomes effective, and thereafter
from time to time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any
Underwriter is required to deliver a prospectus within the nine-month
period referred to in Section 10(a)(3) of the Act in connection with
the sale of the Shares, the Company will prepare promptly upon request,
but at the expense of such Underwriter, such amendment or amendments to
the Registration Statement and such prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as
soon as possible; to advise you promptly of any proposal to amend or
supplement the
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Registration Statement or Prospectus and to file no such amendment or
supplement to which you shall object in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the shares, and
to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its Shareholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports furnished or filed with the Commission on Forms 20-F and 6-K,
or such other similar form as may be designated by the Commission,
(iii) copies of documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and
(iv) such other information as you may reasonably request regarding the
Company or its Subsidiaries, in each case as soon as such
communications, documents or information becomes available;
(h) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act which,
in the judgment of the Company, would require the making of any change
in the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and,
during such time, to prepare and furnish, at the Company's expense, to
the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to
furnish you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve
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months beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but not
later than [December 31, 1999];
(j) to furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report including a balance sheet
and statements of income, shareholders' equity and of cash flow of the
Company for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants;
(k) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and sufficient
conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be,
but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements,
if any, of the Company and its Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 8(c) of this Agreement;
(m) not to issue, sell, offer or agree to sell, contract to
sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable, or exercisable for Common Stock or warrants or other
rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock or permit the
registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement and except for issuances of Common Stock
upon the exercise of outstanding options, warrants and debentures, for
a period of 180 days after the date hereof, without Warburg Dillon Read
LLC's [and UBS AG's] prior written consent;
(n) to use its best efforts to cause the Common Stock to be
listed on the New York Stock Exchange (the "NYSE"); and
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(o) the Company will use reasonable efforts to determine whether
it or any of its Subsidiaries is a "foreign personal holding company"
within the meaning of section 552 of the Internal Revenue Code of 1986,
as amended (the "CODE"), or any similar successor provision, with
respect to which undistributed foreign personal holding income within
the meaning of section 556 of the Code or any similar successor
provision ("UNDISTRIBUTED INCOME") will be included in the income of
any U.S. Shareholder, within the meaning of section 551(a) of the Code
or any similar successor provision, of the Company (a "U.S.
SHAREHOLDER") in any taxable year; if the Company determines that at
any time during any taxable year the Company or any of its Subsidiaries
is an FPHC with any Undistributed Income, then the Company will furnish
to each U.S. Shareholder (or its nominee) such information as may be
necessary or appropriate to calculate its pro rata share of
Undistributed Income for the taxable year and to satisfy its related
United States federal income tax reporting obligations.
6. Certain Covenants of the Selling Shareholder. The Selling
Shareholder hereby agrees as follows:
(a) the Selling Shareholder will pay all costs, expenses, fees
and taxes (other than any transfer taxes and fees and disbursements of
counsel for the Underwriters except as set forth under Section 6 hereof
and (iii) and (iv) below) in connection with (i) the preparation and
filing of the Registration Statement, each Preliminary Prospectus, the
Prospectus, and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares by the Selling
Shareholder, (iii) the producing, word processing and/or printing of
this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Power of Attorney and any closing documents (including
compilations thereof), any Statements of Information and the
reproduction and/or printing and furnishing of copies of each thereof
to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under U.S. state laws and the
determination of their eligibility for investment under U.S. state law
as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Shares on any securities exchange or qualification of the Shares for
quotation on the NYSE and any registration thereof under the Exchange
Act, (vi) any filing for review of the public offering of the Shares by
the
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NASD, and (vii) the performance of the Company's and the Selling
Shareholder's other obligations hereunder;
(b) the Selling Shareholder will not sell, offer or agree to
sell, contract to sell, grant any option to sell or otherwise dispose
of, directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock, or any other
securities of the Company that are substantially similar to Common
Stock or permit the registration under the Act of any shares of Common
Stock, except for the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement, for a period of 180 days after
the date of the Prospectus without Warburg Dillon Read LLC's [and UBS
AG's] prior written consent;
(c) the Selling Shareholder will use its best efforts (i) to do
and perform all things required or necessary to be done and performed
under this Agreement by it prior to the time of purchase and at the
additional time of purchase, as the case may be, and (ii) to satisfy or
cause to be satisfied all conditions precedent on its part to the
delivery of the Shares; and
(d) the Selling Shareholder will use reasonable efforts to
prevent the Company and any of its Subsidiaries from becoming, for
United States federal income tax purposes, an FPHC, including without
limitation, to plan (in consultation with its U.S. tax counsel),
negotiate and execute any future sale, offer or agreement to sell,
contract to sell, grant of any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock, or any other
securities of the Company that are substantially similar to Common
Stock in such a manner as to prevent more than 50% of either (i) the
total combined voting power of all classes of the voting stock, or of
(ii) the total value of the stock, of the Company from being actually
or constructively owned, directly or indirectly, by five or less
individual United States citizens or residents.
7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 10 hereof or the default by one or more
of the Underwriters in its or their respective obligations hereunder, the
Selling Shareholder shall, in addition to paying the amounts described in
Section 6(a), reimburse the Underwriters for all of their out-of-pocket
expenses, including the fees and disbursements of their counsel.
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8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholder on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholder on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be), the
performance by the Company and the Selling Shareholder of their obligations
hereunder and to the following additional conditions precedents:
(a) The Company and the Selling Shareholder shall furnish to you
at the time of purchase and at the additional time of purchase, as the
case may be, an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for
the Company and the Selling Shareholder, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as
the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Underwriters, stating that:
(i) each of the Subsidiaries meeting that criteria in
the definition of "significant subsidiary" in Rule 1-02(w) of
Regulation S-X of the Act (each, a "SIGNIFICANT SUBSIDIARY")
which has been incorporated in the United States (the "U.S.
SIGNIFICANT SUBSIDIARIES") has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full
corporate power and authority to own, lease and operate its
respective properties and to conduct its respective business, as
described in the Registration Statement;
(ii) the Company and its U.S. Significant Subsidiaries
are duly qualified or licensed by each jurisdiction in which
they conduct their respective businesses and in which the
failure, individually or in the aggregate, to be so licensed or
qualified could have a Material Adverse Effect and the Company
and its U.S. Significant Subsidiaries are duly qualified, and
are in good standing, in each jurisdiction in which they own or
lease real property or maintain an office and in which such
qualification is necessary;
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(iii) assuming each of the Operative Documents has been
duly authorized, executed and delivered by each of the JH
Parties which is a party thereto under Netherlands, Australian
and New Zealand law, as applicable, each of the Operative
Documents has been duly authorized, executed and delivered by
each of the JH Parties which is a party thereto;
(iv) other than the Subsidiaries, the Company does not
own or control, directly or indirectly, any corporation,
association or other entity; each Significant Subsidiary is duly
qualified to do business as a foreign corporation in good
standing in each jurisdiction where the ownership or leasing of
the properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not
have a Material Adverse Effect; all of the outstanding shares of
capital stock of each Significant Subsidiary has been duly
authorized and validly issued, are fully paid and non-assessable
and, except as otherwise stated in the Registration Statement,
are owned by the Company, in each case subject to no security
interest, other encumbrance or adverse claim; to the best of
such counsel's knowledge, no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Significant Subsidiaries are
outstanding;
(v) the capital stock of the Company, including the
Shares, conforms in all material respects to the description
thereof contained in the Registration Statement and Prospectus;
(vi) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(vii) the Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened under the Act and any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424 under
the Act has been made in the manner and within the time period
required by such Rule 424;
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(viii) no approval, authorization, consent or order of
or filing with any United States federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency is required in connection with the
consummation of the Reorganization by the JH Parties and the
issuance and sale of the Shares and the consummation by the
Company and the Selling Shareholder of the transactions as
contemplated hereby other than registration of the Shares under
the Act (except such counsel need express no opinion as to any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters);
(ix) the execution, delivery and performance of each
Operative Document by each of JH Parties party thereto and the
consummation by each of the JH Parties of the transactions
contemplated hereby and thereby do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or
both, would result in any breach of, or constitute a breach of
or default under), any provisions of the charter (or articles of
association, in the case of the Company) or by-laws of the
Company, any of its Subsidiaries or the Selling Shareholder or
under any provision of any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or
instrument to which the Company, any of its Subsidiaries or the
Selling Shareholder is a party or by which any of them or their
respective properties may be bound or affected, or under any
U.S. Federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
of its Subsidiaries;
(x) to the best of such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries is in violation
of its charter or by-laws or is in breach of, or in default
under (nor has any event occurred which with notice, lapse of
time, or both would result in any breach of, or constitute a
breach of, or default under), any license, indenture, mortgage,
deed of trust, bank loan, credit agreement or other evidence of
indebtedness, or any lease, contract or any other agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which any of them or their respective properties may
be bound or affected or under any U.S. Federal, state, local or
foreign law, regulation or rule or any decree,
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judgment or order applicable to the Company or any of its
Subsidiaries;
(xi) to the best of such counsel's knowledge, there are
no contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized or
described;
(xii) to the best of such counsel's knowledge, there are
no actions, suits, claims, investigations or proceedings
pending, threatened or contemplated against the Company or any
of its Subsidiaries or any of their respective properties, or to
which the Company, its Subsidiaries and properties are subject
at law or in equity or before or by any U.S. Federal, state,
local or foreign governmental or regulatory commission, board,
body, authority or agency which are required to be described in
the Prospectus but are not so described;
(xiii) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment
Company Act;
(xiv) the Company and each of its Subsidiaries are in
compliance with any and all applicable Environmental Laws, have
received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their
respective businesses and are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
Material Adverse Effect;
(xv) under the laws of the State of New York relating to
submission of personal jurisdiction, the Company and the Selling
Shareholder have each validly and effectively submitted to the
jurisdiction of any United States Federal or state court in the
Borough of Manhattan, The City of New York, State of New York,
have each validly and irrevocably waived any objection to the
laying of venue of a proceeding in any such court and any
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immunity to jurisdiction of any such court, to which any of them
may be or become entitled, and have each validly and irrevocably
appointed __________ as its authorized agent, in the case of the
Company, and _______, in the case of the Selling Shareholder,
for the purposes described in Section 14 hereof;
(xvi) the Selling Shareholder has full legal right and
power, and has obtained any authorization or approval required
by law (other than those imposed by the Act and the securities
or blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver the Shares to be sold by the Selling
Shareholder in the manner provided in this Agreement;
(xvii) delivery of certificates for the Shares by the
Selling Shareholder pursuant hereto will pass valid and
marketable title thereto to the Underwriters, free and clear of
any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in
title;
(xviii) to the best of such counsel's knowledge, the
statements in the Prospectus under the captions "Selling
Shareholder"; "Certain Relationships and Related Transactions";
"Business -- Environmental" and "Business -- Legal Proceedings";
insofar as such statements constitute a summary of the matters
referred to therein present fairly the information called for
with respect to such matters;
(xix) the statements in the Prospectus under the caption
"Risk Factors --Tax Risks on Intercompany Interest Payments" and
"Taxation --United States Taxation", insofar as such statements
constitute a summary of matters of law, accurately describe the
material United States federal income tax consequences referred
to therein, subject to the qualifications stated therein and
under the caption "Taxation --General"; and
(xx) such counsel have participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and Prospectus were
discussed and, although such counsel is not passing upon and
does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus
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(except as and to the extent stated in subparagraphs (vi) and
(vii) above), on the basis of the foregoing nothing has come to
the attention of such counsel that causes them to believe that
the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such
Prospectus or such supplement, and at all times up to and
including the time of purchase or additional time of purchase,
as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with
respect to the financial statements and schedules and other
financial and statistical data included in the Registration
Statement or Prospectus).
In rendering such opinion, such counsel may (A) state that its opinion
is limited to the laws of the State of California and the federal laws of the
United States and (B) rely as to matters involving the application of laws of
any jurisdiction other than the State of California or the United States, to the
extent deemed proper and specified in such opinion, upon the opinions dated the
time or purchase or the additional time of purchase, as the case may be, of
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ as to Australian law matters, DeBrauw Blackstone
Westbroek, as to Dutch law matters and _________, as to New Zealand law matters
[as well as upon opinions, memoranda and other documents relating to tax advice
rendered with respect to the Reorganization, which shall be supplemented by
additional tax opinions, if reasonably requested by counsel for the Company and
Selling Shareholder, dated at the time of purchase or additional time of
purchase, as the case may be, and reviewed in form and substance satisfactory to
such counsel].
(b) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
DeBrauw Blackstone Westbroek, special Netherlands counsel for the
Company, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form satisfactory to
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, stating that:
(i) each of the Company and each of its Subsidiaries
incorporated under the laws of the Netherlands (each, a "DUTCH
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SUBSIDIARY") has been duly incorporated and is validly existing
under the laws of The Netherlands as a legal entity in the form
of a "naamloze vennootschap", with full corporate power and
authority to own its respective properties and conduct its
business as described in the Registration Statement and the
Prospectus, to execute and deliver this Agreement and each other
Operative Document to which it is a party;
(ii) each Dutch Subsidiary is duly qualified or licensed
by each jurisdiction in which it conducts businesses and in
which the failure, individually or in the aggregate, to be so
licensed or qualified could have a Material Adverse Effect; and
each Dutch Subsidiary is duly qualified, and is in good
standing, in each jurisdiction in which they own or lease real
property or maintain an office and in which such qualification
is necessary; each Dutch Subsidiary is duly qualified to do
business as a foreign corporation in good standing in each
jurisdiction where the ownership or leasing of the properties or
the conduct of its business requires such qualification, except
where the failure to so qualify would not have a Material
Adverse Effect;
(iii) the Company has an authorized capitalization as
set forth in the Registration Statement and the Prospectus; the
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar
rights; the Shares have been duly authorized and validly issued
in accordance with the laws of The Netherlands and the
provisions of the Articles of Association applicable thereto,
are fully paid and non-assessable and are free of statutory and
contractual preemptive rights; the certificates for the Shares
are in due and proper form and the holders of the Shares will
not be subject to personal liability by reason of being such
holders;
(iv) according to the Shareholders Register of the
Company, the Shares are free of rights of pledge ("pandrecht")
or rights of usufrucht ("vruchtgebruik");
(v) the execution, delivery of, and performance by each
of the Company and its Dutch Subsidiaries of their respective
obligations under each of the Operative Documents to which they
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may be a party have been duly authorized by the Company and its
Dutch Subsidiaries, as applicable;
(vi) the Reorganization has been duly authorized by all
corporate action required under the laws of The Netherlands on
the part of the Company and its Dutch Subsidiaries;
(vii) the Company and its Dutch Subsidiaries have the
corporate power and authority to enter into and perform the
obligations on their part to be performed under this Agreement
and under each of the other Operative Documents to which any of
them is a party, and the Company and its Dutch Subsidiaries have
the corporate power and authority to conduct its business as
described in the U.S. Prospectus and the International
Prospectus;
(viii) the execution and delivery by each of the Company
and its Dutch Subsidiaries of, and the performance by each of
the Company and its Dutch Subsidiaries of its respective
obligations under each of the Operative Documents to which each
is a party do not violate any provisions of the law of The
Netherlands or any of the provisions of the Articles of
Association of the Company and such Dutch Subsidiaries;
(ix) the choice of New York law as the law expressed to
be governing this Agreement will be recognized as the law
governing this Agreement and, accordingly, the courts of The
Netherlands should apply New York law as the law expressed to be
governing this Agreement;
(x) in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or
any of the other Operative Documents to which the Company and
any of the Dutch Subsidiaries is party, it is not necessary that
any of them be filed, recorded or enrolled with any public
authority, governmental agency or governmental department of The
Netherlands (excluding, for the avoidance of doubt, a court in
connection with legal proceedings insofar as the enforceability
and admissibility in evidence are concerned), or that any stamp,
registration or similar tax or duty be paid in The Netherlands,
except for certain court fees in connection with legal
proceedings;
(xi) the submission to the jurisdiction of any United
States Federal court or state court sitting in the Borough of
Manhattan,
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the City of New York, State of New York, the irrevocable waiver
of any objection to the laying of venue of a proceeding in such
court and of any immunity to jurisdiction of such court, to
which it is or may become entitled, will, according to the
courts of The Netherlands duly applying New York law as the law
governing this Agreement (including such submissions and
waiver), be valid and binding on the Company;
(xii) all authorizations, consents or approvals of, or
registrations or filings with, any governmental department or
regulatory authority of or within The Netherlands which are
required for the offer of the Shares and the consummation of the
Reorganization have been obtained or made and are in full force
and effect;
(xiii) the statements in English as to the laws of The
Netherlands and the Articles of Association of the Company,
under the captions "Description of Capital Stock" and "Dividend
Policy" of the Prospectus, are correct in all material respects
and the Shares conform to the description of the Shares in such
statements and the Articles of Association of the Company;
(xiv) the statements in the Prospectus under the caption
"Taxation--Netherlands Taxation" are accurate and adequately
summarize the matters referred to therein in all material
respects and adequately disclose the pertinent tax issues, and
under the circumstances of the sale of Shares in the manner
contemplated in the Prospectus, no Netherlands income tax,
registration tax, transfer tax, stamp duty or similar tax or
duty will be owing in respect of the sale of the Shares, except
as described in the Prospectus under the caption
"Taxation--Netherlands Taxation";
(xv) the general meeting of shareholders of the Company
has in resolutions adopted on __________, 1998 validly resolved
to exclude the pre-emptive rights of shareholders and no other
action is required to exclude such pre-emptive rights;
(xvi) all of the outstanding shares of capital stock of
each of the Subsidiaries incorporated or otherwise formed under
the laws of The Netherlands have been duly authorized and
validly issued, are fully paid and non-assessable and, except as
otherwise stated in the Registration Statement, are owned by the
Company, in each case subject to no security interest, other
encumbrance or
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adverse claim; to the best of such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests
in such Subsidiaries are outstanding;
(xvii) to the best of such counsel's knowledge, neither
the Company nor any of its Dutch Subsidiaries is in violation of
its charter, articles of association (or other organizational
document) or its by-laws or is in breach of, or in default under
(nor has any event occurred which with notice, lapse of time, or
both would result in any breach of, or constitute a breach of,
or default under), any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other evidence of
indebtedness, or any lease, contract or any other agreement or
instrument to which any of its Dutch Subsidiaries is a party or
by which any of them or their respective properties may be bound
or affected or under any U.S. Federal, state, local or foreign
law, regulation or rule or any decree, judgment or order
applicable to such Dutch Subsidiary;
(xviii) to the best of such counsel's knowledge, there
are no actions, suits, claims, investigations or proceedings
pending, threatened or contemplated against any of the Company
or its Dutch Subsidiaries or any of their respective properties,
or to which the Company or its Dutch Subsidiaries or any of
their respective properties are subject at law or in equity or
before or by any U.S. Federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency which are required to be described in the Prospectus but
are not so described;
(xix) the Shares, when delivered to and paid for by the
Underwriters, will be duly and validly authorized and will be
fully paid and non-assessable; and
[(xx) [TO BE INSERTED IF DEED OF TRANSFER IS GOVERNED BY
DUTCH LAW; IF NOT, GD&C TO GIVE THIS OPINION] title to the
Shares has been validly transferred by the Selling Shareholder
as contemplated in the deed of transfer executed and delivered
by the Selling Shareholder.]
(c) The Company and the Selling Shareholder shall furnish to you
at the time of purchase and at the additional time of purchase, as the
case may be, an opinion of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Australian counsel
for
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31
the Company and the Selling Shareholder, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as
the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Underwriters, stating that:
(i) each of the Operative Documents to which a JH Party
incorporated in Australia (each, an "AUSTRALIAN JH PARTY") is a
party have been duly authorized, executed and delivered by each
of the Australian JH Parties, as applicable;
(ii) each Australian JH Party has the corporate power
and authority to enter into and perform the obligations on its
part to be performed under each Operative Document to which it
is a party;
(iii) the execution, delivery and performance by each
Australian JH Party of its respective obligations under each
Operative Document to which it is a party will not contravene
any provision of applicable Australian law, rule or regulation
or any of the provisions of such Australian JH Party's charter
or other organizational document;
(iv) each Australian JH Party has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of Australia with full corporate power and authority to
own, lease and operate its respective properties and to conduct
its respective businesses;
(v) each Australian JH Party is duly qualified or
licensed by each jurisdiction in which it conducts its business
and in which the failure, individually or in the aggregate, to
be so licensed or qualified could have a Material Adverse Effect
and each of the Australian JH Parties is duly qualified, and is
in good standing, in each jurisdiction in which it owns or
leases real property or maintains an office and in which such
qualification is necessary;
(vi) all of the outstanding shares of capital stock of
each of the Subsidiaries incorporated or otherwise formed under
the laws of Australia and the Selling Shareholder's subsidiaries
incorporated or otherwise formed under laws of Australia have
been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise stated in the
Registration Statement, are owned by the Company or the Selling
Shareholder,
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32
as the case may be, in each case subject to no security
interest, other encumbrance or adverse claim; to the best of
such counsel's knowledge, no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in such Subsidiaries are outstanding;
(vii) the Reorganization has been duly authorized by all
corporate action required under Australian law on the part of
each of the Australian JH Parties; all authorizations, consents
or approvals of, or registrations or filings with, any
governmental department or regulatory authority of or within
Australia which are required for the consummation of the
Reorganization have been obtained or made and are in full force
and effect;
(viii) under Australian law, the Company and its
Subsidiaries, as purchasers of certain assets of the Selling
Shareholder and certain of its subsidiaries pursuant to the
Purchase Agreements cannot and could not be held liable under a
"successor liability" doctrine for the liabilities (corporate,
environmental or otherwise) of the Selling Shareholder and its
subsidiaries;
(ix) assuming the Company and its Subsidiaries have paid
fair value for the Transferred Businesses, the transfer of the
Transferred Businesses from the Selling Shareholder and its
subsidiaries to the Company and its Subsidiaries shall not and
will not be deemed a fraudulent conveyance under the laws of
Australia; and
(x) no capital duty, stamp duty or other issuance or
transfer taxes or duties are payable under Australian law in
connection with or as a result of the sale and delivery of the
Shares to or for the respective accounts of the Underwriters or
to any purchasers procured by the International Underwriters, in
either case in the manner contemplated herein or the sale and
delivery by the Underwriters of the Shares to their initial
purchasers thereof in the manner contemplated herein.
(d) The Company and the Selling Shareholder shall furnish to you
at the time of purchase and at the additional time of purchase, as the
case may be, an opinion of ________________, special New Zealand
counsel for the Company and the Selling Shareholder, substantially to
the following effect:
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33
(i) each subsidiary of the Selling Shareholder
incorporated in New Zealand and each Subsidiary incorporated in
New Zealand (each, a "NZ/JH PARTY") has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of New Zealand with full corporate power and authority
to own, lease and operate its respective properties and to
conduct its business;
(ii) each NZ/JH Party is duly qualified or licensed by
each jurisdiction in which it conducts businesses and in which
the failure, individually or in the aggregate, to be so licensed
or qualified could have a Material Adverse Effect and each NZ/JH
Party is duly qualified, and is in good standing, in each
jurisdiction in which they own or lease real property or
maintain an office and in which such qualification is necessary;
(iii) each of the Operative Documents to which a NZ/JH
Party is party has been duly authorized, executed and delivered
by each NZ/JH Party, as applicable;
(iv) each NZ/JH Party has the corporate power and
authority to enter into and perform the obligations on its part
to be performed under the Operative Document to which it is a
party;
(v) the execution, delivery and performance by each
NZ/JH Party of its respective obligations under each Operative
Document to which it is a party will not contravene any
provision of applicable New Zealand law, rule or regulation or
any of the provisions of such NZ/JH Party's charter or
organization document, as the case may be; and
(vi) all of the outstanding shares of capital stock of
each of the Subsidiaries incorporated or otherwise formed under
the laws of New Zealand have been duly authorized and validly
issued, are fully paid and non-assessable and, except as
otherwise stated in the Registration Statement, are owned by the
Company, in each case subject to no security interest, other
encumbrance or adverse claim; to the best of such counsel's
knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership
interests in such Subsidiaries are outstanding.
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34
[(e) The Company and the Selling Shareholder shall furnish to
you at the time of purchase and at the additional time of purchase, as
the case may be, an opinion of [Coopers & ▇▇▇▇▇▇▇ L.L.P., special tax
counsel] for the Company and the Selling Shareholder, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form satisfactory to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, stating that:
(i) [possible opinions regarding tax.]]
(f) You shall have received from PricewaterhouseCoopers LLP
letters dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Warburg Dillon Read
LLC [and UBS AG].
(g) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be, as
to the matters referred to in subparagraphs (iii) (with respect to this
Agreement only), (v) (with respect to the Shares only), (vi), (vii) and
(xvii) of paragraph (a) of this Section 8.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and Prospectus (except as to matters
referred to with respect to the Shares under subparagraph (vii) of
paragraph (a) of this Section 8), on the basis of the foregoing, no
facts have come to the attention of such counsel which lead them to
believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a
material fact
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35
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date or any
supplement thereto as of its date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no comment with respect to
the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
In rendering such opinion, such counsel may (A) state that its opinion
is limited to the laws of the State of New York, the General Corporation Law of
Delaware and the federal laws of the United States and (B) rely as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the United States, to the extent deemed proper and specified in such
opinion, upon the opinions dated the time of purchase or the additional time of
purchase, as the case may be, of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, as to Australian law
matters, DeBrauw Blackstone Westbroek, as to Dutch law matters and ____________,
as to New Zealand law matters[, as well as upon opinions, memoranda and other
documents relating to tax advice rendered with respect to the Reorganization,
which shall be supplemented by additional tax opinions, if reasonably requested
by counsel for the Underwriters, dated the time of purchase or the additional
time of purchase, as the case may be, and received in form and substance
satisfactory to such counsel].
(h) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(i) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:00 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:00 P.M., New York City time, on the
second full business day after the date of this Agreement) shall be
agreed to by the Company, the Selling Shareholder and you in writing or
by telephone, confirmed in writing; provided, however, that the
Company, the Selling Shareholder and you and any group of Underwriters,
including you, who have agreed hereunder to purchase in the aggregate
at least 50% of the Firm Shares may from time to time agree on a later
date.
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36
(j) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall 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, in the light of
the circumstances under which they are made, not misleading.
(k) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i)
no material and unfavorable change, financial or otherwise (other than
as referred to in the Registration Statement and Prospectus), in the
business, condition or prospects of the Company and its Subsidiaries
taken as a whole shall occur or become known and (ii) no transaction
which is material and unfavorable to the Company shall have been
entered into by the Company or any of its Subsidiaries.
(l) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of two of
its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date, that the Company shall perform such of
its obligation under this Agreement as are to be performed at or before
the time of purchase and at or before the additional time of purchase,
as the case may be and the conditions set forth in paragraphs (k) and
(l) of this Section 8 have been met.
(m) You shall have received signed letters, dated the date of
this Agreement, from the Selling Shareholder and each of the directors
and officers of the Company to the effect that such persons shall not
sell, offer or agree to sell, contract to sell, grant any option to
sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock of the Company or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other
rights to purchase Common Stock or any other securities of the Company
that are substantially similar to the Common Stock for a period of 180
days after the date of the Prospectus
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37
without Warburg Dillon Read LLC's [and UBSI AG's] prior written
consent.
(n) The Company and the Selling Shareholder shall have furnished
to you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the time of purchase and the additional time of
purchase, as the case may be, as you may reasonably request.
(o) The Company and the Selling Shareholder shall perform such
of their respective obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase and at
or before the additional time of purchase, as the case may be.
(p) The Shares shall have been approved for listing on the NYSE,
subject only to notice of issuance at or prior to the time of purchase
or the additional time of purchase, as the case may be.
(q) The Selling Shareholder will at the time of purchase and the
additional time of purchase, as the case may be, deliver to you a
certificate to the effect that the representations and the warranties
of the Selling Shareholder as set forth in this Agreement are true and
correct as of each such date.
(r) Between the time of execution of this Agreement and the time
of purchase or additional time of purchase, as the case may be, there
shall not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or any subsidiary of the Company by any
"nationally recognized statistical rating organization", as that term
is defined in Rule 436(g)(2) promulgated under the Act.
[(s) No action shall have been taken and no statute, rule or
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would as of the time of purchase or the
additional time of purchase, as the case may be, prevent the sale of
the Shares or the consummation of the Reorganization. No injunction,
restraining order or order of any nature by a federal or state or local
court of competent jurisdiction shall have been issued as of the time
of purchase or the additional time of purchase, as the case may be,
that would prevent or interfere with the sale of the Shares or the
consummation of the
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Reorganization. At the time of purchase or the additional time of
purchase, as the case may be, no action, suit or proceeding shall be
pending against or affecting or, to the best knowledge of the Company
or the Selling Shareholder, threatened against, any of the Company, any
Subsidiary or the Selling Shareholder, before any court or arbitrator
or any governmental body, agency or official, except as disclosed in
the Prospectus and except for such actions, suits or proceedings that
if adversely determined would not, either individually or in the
aggregate, have a material adverse effect on the sale of the Shares or
would not individually or in the aggregate have a Material Adverse
Effect or in any manner draw into question the validity of any
Operative Document or prevent the consummation of the Reorganization.]
(t) All proceedings taken in connection with the sale of the
Shares as herein contemplated shall be reasonably satisfactory in form
and substance to the Underwriters and to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Underwriters.
(u) The Reorganization shall have been consummated and each
Operative Document shall have been executed and delivered by each party
thereto and a true and complete copy of each shall have been delivered
to the Underwriters; each of the Operative Documents shall be in full
force and effect on the Closing Date, prior to or contemporaneously
with the Closing Date, each of the actions contemplated or required to
occur and each of the conditions contemplated or required to be
satisfied on or prior to the consummation of the Reorganization, shall
have occurred or been satisfied and no waiver, amendment or
modification of any provision of any of the Operative Documents shall
have occurred, other than any such action or condition or any such
waiver, amendment or modification which in the Underwriters' reasonable
judgment does not make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus; and the Company
shall have received the proceeds of the borrowings under the Bank
Facilities and Notes.
(v) None of the JH Parties shall have failed at or prior to the
Closing Date to perform or comply with any of the agreements contained
in any Operative Document and required to be performed or complied with
by the Company, the Selling Shareholder, its subsidiaries or any
Subsidiary, as the case may be, at or prior to the Closing Date.
(w) The Operative Documents shall be in full force and effect on
the Closing Date. No waiver, amendment or modification of any provision
of the Underwriting Agreement shall have occurred other than
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39
any waiver, amendment or modification which in the Underwriters'
reasonable judgment does not make it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus.
(x) The Selling Shareholder shall have received all approvals by
its shareholders required under Australian laws including, but not
limited to, the Australian Stock Exchange Listing Rules in connection
with the offering of the Shares hereunder and the consummation of the
Reorganization.
9. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and Prospectus, (x) any of the Selling Shareholder, the Company or any of the
Subsidiaries shall have failed, refused or been unable to perform in any
material respect any agreement on its part then to be performed under any
Operative Document, (y) there has been any material adverse and unfavorable
change, financial or otherwise (other than as referred to in the Registration
Statement and Prospectus), in the operations, business, condition or prospects
of the Company and its Subsidiaries taken as a whole, which would, in your
judgment or in the judgment of such group of Underwriters, make it impracticable
to market the Shares, or (z) there shall have occurred any downgrading, or any
notice shall have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company or any Subsidiary
of the Company by any "nationally recognized statistical rating organization",
as that term is defined in Rule 436(g)(2) promulgated under the Act or, if, at
any time prior to the time of purchase or, with respect to the purchase of any
Additional Shares, the additional time of purchase, as the case may be, trading
in securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or limitations or minimum
prices shall have been established on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market, or if a banking moratorium shall
have been declared either by the United States or New York State authorities, or
if the United States shall have declared war in accordance with its
constitutional processes or there shall have
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40
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 9, the Company, the Selling Shareholder and each
other Underwriter shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Shareholder, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Shareholder, as the case
may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Shareholder under this Agreement (except to the extent provided in
Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. Subject to Sections 8 and
9, if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 9 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate principal amount of Firm
Shares they are obligated to purchase pursuant to Section 1 hereof) the number
of Firm Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A or B.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Selling Shareholder agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
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If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company, the Selling Shareholder or
you shall have the right to postpone the time of purchase for a period not
exceeding five business days in order that any necessary changes in the
Registration Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 10 with like effect as if
such substituted Underwriter had originally been named in Schedule A or B.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
11. Indemnity and Contribution by the Company, the Selling Shareholder
and the Underwriters.
(a) The Company and the Selling Shareholder jointly and severally
agree to indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers, and any person who controls any Underwriter within the
meaning of
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Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 11 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company), or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in either such
Registration Statement or Prospectus or necessary to make the statements made
therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either such Registration Statement or such
Prospectus or necessary to make such information not misleading; provided,
however, that the indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
damage, expense, liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue statement or
omission and if such Underwriter failed to send or give a copy of the Prospectus
to such person at or prior to the written confirmation of the sale of such
Shares to such person, unless the failure is the result of noncompliance by the
Company with paragraph (f) of Section 5 hereof.
If any action, suit or proceeding (together, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company or the Selling Shareholder pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the Company and
the Selling Shareholder in writing of the institution of such Proceeding and the
Company or the Selling Shareholder, as the case may be, shall assume the defense
of such Proceeding, including the employment of counsel reasonably satisfactory
to such indemnified party and payment of all fees and expenses, provided,
however, that the omission to so notify the Company or the Selling
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Shareholder shall not relieve the Company or the Selling Shareholder from any
liability which they may have to any Underwriter or any such person or
otherwise. Such Underwriter or such controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been authorized in writing by
the Company or the Selling Shareholder in connection with the defense of such
Proceeding or the Company or the Selling Shareholder shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company or the Selling Shareholder (in which case the Company
or the Selling Shareholder shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Company or the Selling
Shareholder, as the case may be, and paid as incurred (it being understood,
however, that the Company or the Selling Shareholder shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Company or the Selling Shareholder shall not be liable for any settlement of any
such claim or Proceeding effected without its written consent but if settled
with the written consent of the Company or the Selling Shareholder. The Company
or the Selling Shareholder agrees to indemnify and hold harmless any Underwriter
and any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
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(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, the Selling Shareholder and
any person who controls the Company or the Selling Shareholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, the Selling Shareholder
or any such person may incur under the Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated either in such Registration Statement or Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company, the Selling
Shareholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, the
Selling Shareholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses,
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter, from any liability which they may have to the Company,
the Selling Shareholder or any such person or otherwise. The Company, the
Selling Shareholder or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, the Selling Shareholder or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to,
or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall
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not be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such claim
or Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company, the Selling Shareholder and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholder on the one
hand and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Shareholder on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Shareholder on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts
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and commissions but before deducting expenses) received by the Company and the
Selling Shareholder bear to the total underwriting discounts and commissions
received by the Underwriters, bear to the aggregate public offering price of the
Shares. The relative fault of the Company and the Selling Shareholder on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission relates to information supplied
by the Company, by the Selling Shareholder or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating, preparing to
defend or defending any proceeding.
(d) The Company, the Selling Shareholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
11 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 11, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 11 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company and
the Selling Shareholder contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors and officers or any person (including each
partner, officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers or any person who controls
the Company, the Selling Shareholder, its directors or officers or any person
who controls the Selling Shareholder within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the
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issuance and delivery of the Shares. The Company, the Selling Shareholder and
each Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company or the
Selling Shareholder, against any of the Company's or the Selling Shareholder's
officers or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
either the U.S. or the International Underwriters, shall be sufficient in all
respects if delivered or sent to Warburg Dillon Read LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department and, if to the Company,
shall be sufficient in all respects if delivered or sent to the Company at the
offices of the Company at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, U.S.A., Attention: __________ and, if to the Selling Shareholder,
shall be sufficient in all respects if delivered or sent to the Selling
Shareholder at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
Attention: __________.
13. Governing Law; Construction. THIS AGREEMENT AND ANY CLAIM,
COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN
ANY WAY RELATING TO THIS AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF
CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
14. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and each of the
Company and the Selling Shareholder consents to the jurisdiction of such courts
and personal service with respect thereto. Each of the Company and the Selling
Shareholder hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against Warburg Dillon Read LLC or any indemnified
party. Each of Warburg Dillon Read LLC, the Selling Shareholder and the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its
Shareholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. Each of the Company and
the Selling Shareholder agrees that a final judgment in any such action,
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proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company or the Selling Shareholder, as the case may be, and may
be enforced in any other courts in the jurisdiction of which the Company or the
Selling Shareholder, as the case may be, is or may be subject, by suit upon such
judgment. The Company hereby appoints, without power of revocation, [SPECIFY
AGENT] as its agent and the Selling Shareholder hereby appoints, without power
of revocation, [SPECIFY AGENT] as its agent to accept and acknowledge on its
behalf service of any and all process which may be served in any suit, action,
proceeding or counterclaim arising out of or relating to this Agreement.
15. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company, the Selling
Shareholder and to the extent provided in Section 11 hereof the controlling
persons, directors and officers referred to such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Company and the Selling Shareholder and their successors and
assigns and any successor or assign of any substantial portion of the Company's,
the Selling Shareholder's and any of the Underwriters' respective businesses
and/or assets.
[18. Miscellaneous. Warburg Dillon Read LLC, an indirect, wholly owned
subsidiary of _______________, is not a bank and is separate from any affiliated
bank, including any U.S. branch or agency of Warburg Dillon Read LLC. Because
Warburg Dillon Read LLC is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including
obligations with respect to sales and purchases of securities. Securities sold,
offered or recommended by Warburg Dillon Read LLC are not deposits, are not
insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.]
[A lending affiliate of SBC Warburg Dillon Read LLC may have lending
relationships with issuers of securities underwritten or privately placed by
Warburg Dillon Read LLC. To the extent required under the securities laws,
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prospectuses and other disclosure documents for securities underwritten or
privately placed by Warburg Dillon Read LLC will disclose the existence of any
such lending relationships and whether the proceeds of the issue will be used to
repay debts owed to affiliates of Warburg Dillon Read LLC.]
If the foregoing correctly sets forth the understanding among the
Company, the Selling Shareholder and the Underwriters, please so indicate in the
space provided below for the purpose, whereupon this letter and your acceptance
shall constitute a binding agreement among the Company, the Selling Shareholder
and the Underwriters, severally.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇ N.V., as the Company
By:
-----------------------------------
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ INDUSTRIES
LIMITED, as the Selling Shareholder
By:
-----------------------------------
Title:
Accepted and agreed to as of
the date first above written,
on behalf of themselves and the
other several U.S. Underwriters
named in Schedule A
WARBURG DILLON READ LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: WARBURG DILLON READ LLC
By:
-----------------------------------
Title:
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By:
-----------------------------------
Title:
Accepted and agreed to as of
the date first above written,
on behalf of themselves and the
other several International
Underwriters named in Schedule B
UBS AG, acting through its division Warburg Dillon Read
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: UBS AG, acting through its division
Warburg Dillon Read
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
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SCHEDULE A
NUMBER OF FIRM
U. S. UNDERWRITERS SHARES TO BE PURCHASED
------------------ ----------------------
Warburg Dillon Read LLC.................................
Credit Suisse First Boston Corporation..................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated........................................
----------------------
Total U.S. Firm Shares.........................
======================
50
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SCHEDULE B
NUMBER OF FIRM
INTERNATIONAL UNDERWRITERS SHARES TO BE PURCHASED
-------------------------- ----------------------
UBS AG, acting through its division
Warburg Dillon Read LLC.............................
Credit Suisse First Boston (Europe) Limited.............
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.............................
----------------------
Total International Firm Shares................
======================
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SCHEDULE C
SUBSIDIARIES OF THE COMPANY
52
