EXHIBIT 1
Draft of 3/17/97
10,500,000 SHARES
CHICAGO BRIDGE & IRON COMPANY N.V.
COMMON SHARES
(NLG 0.01 PAR VALUE)
UNDERWRITING AGREEMENT
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___________, 1997
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
UBS Securities LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000.
Dear Sirs:
1. Introductory. Praxair, Inc., a Delaware corporation (the "Selling
Shareholder"), proposes to sell ("U.S. Offering") an aggregate of 8,400,000
outstanding shares ("U.S. Firm Securities") of the common shares, par value NLG
0.01 per share (the "Securities") of Chicago Bridge & Iron Company N.V., a
Netherlands corporation (the "Company"), to the several underwriters named in
Schedule A hereto (the "U.S. Underwriters"), for whom Credit Suisse First
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Boston Corporation ("CSFBC"), Xxxxxxx, Sachs & Co., Xxxxx Xxxxxx Inc. and UBS
Securities LLC are acting as Representatives.
It is understood that the Company and the Selling Shareholder are
concurrently entering into a Subscription Agreement, dated the date hereof
("Subscription Agreement"), with Credit Suisse First Boston (Europe) Limited
("CSFBL"), Xxxxxxx Sachs International, Xxxxx Xxxxxx Inc., UBS Limited, and the
other managers named therein ("Managers") relating to the concurrent offering
and sale of 2,100,000 shares of Securities ("International Firm Securities")
outside the United States and Canada ("International Offering").
In addition, as set forth below the Selling Shareholder proposes to sell
(i) to the U.S. Underwriters, at the option of the U.S. Underwriters, an
aggregate of not more than 800,000 additional shares of Securities ("U.S.
Optional Securities") and (ii) to the Managers, at the option of the Managers,
an aggregate of not more than 200,000 additional shares of Securities
("International Optional Securities"). The U.S. Firm Securities and the U.S.
Optional Securities are hereinafter called the "U.S. Securities"; the
International Firm Securities and the International Optional Securities are
hereinafter called the "International Securities"; the U.S. Firm Securities and
the International Firm Securities are hereinafter called the "Firm Securities";
the U.S. Optional Securities and the International Optional Securities are
hereinafter called the "Optional Securities". The U.S. Securities and the
International Securities are collectively referred to as the "Offered
Securities". To provide for the coordination of their activities, the U.S.
Underwriters and the Managers have entered into an Agreement Between U.S.
Underwriters and Managers which permits them, among other things, to sell the
Offered Securities to each other for purposes of resale.
In connection with the offering of the Offered Securities, Chi Bridge
Holdings, Inc. ("Holdings"), a Delaware corporation which was a wholly-owned
subsidiary of the Selling Shareholder prior to being
merged with and into the Selling Shareholder, has effected, through its
subsidiaries, a restructuring which is described in the Prospectuses and which
is hereinafter referred to as the "Reorganization."
The Company and the Selling Shareholder hereby agree with the several
U.S. Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Shareholder. (a) The Company represents and warrants to, and agrees with, the
several U.S. Underwriters that:
(i) A registration statement (No. 333-18065) relating to the
Offered Securities, including a form of prospectus relating to the U.S.
Securities and a form of prospectus relating to the International
Securities being offered in the International Offering, has been filed
with the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the Securities Act of 1933 ("Act") and
is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been declared effective,
either (I) an additional registration statement (the "additional
registration statement") relating to the Offered Securities may have been
filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under
the Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered under
the Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (II) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities will
all have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If
the Company does not propose to amend the initial registration statement
or if an additional registration statement has been filed and the Company
does not propose to amend it, and if any post-effective amendment to
either such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the most recent
amendment (if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c) ("Rule 462(c)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "Effective Time" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (I) if the Company
has advised the Representatives that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c), or (II) if the Company has advised the Representatives
that it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with
respect to such additional registration statement means the date and time
as of which such registration statement is filed and becomes effective
pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if any)
means the date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all information
contained in the additional registration statement (if any) and deemed to
be a part of the initial registration statement as of the Effective Time
of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to
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collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the U.S.
Securities and the form of prospectus relating to the International
Securities, each as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in the Registration Statement, are
hereinafter referred to as the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively as the "Prospectuses". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement complied in all material respects with the
requirements of the Act and the rules and regulations of the Commission
thereunder ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement complied, or will comply,
in all material respects with the requirements of the Act and the Rules
and Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of each of the Prospectuses pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectuses are included,
and on each Closing Date (as hereinafter defined), each Registration
Statement and each of the Prospectuses will conform, in all material
respects to the requirements of the Act and the Rules and Regulations,
and none of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectuses, in the light of the
circumstances under which they were made) not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: (A) on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and each of the Prospectuses will conform in all material respects to the
requirements of the Act and the Rules and Regulations, none of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectuses, in the light of the circumstances under which they were
made) not misleading, and no Additional Registration Statement has been
or will be filed and (B) on each Closing Date, the Initial Registration
Statement and each of the Prospectuses will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
none of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectuses, in the light of the circumstances under which they were
made,) not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences do not apply to statements
in or omissions from a Registration Statement or the U.S. Prospectus
based upon written information furnished to the Company by any U.S.
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is validly
existing as a public company with limited liability (naamloze
vennootschap) under the laws of The Netherlands, with corporate power and
authority to own its properties and conduct its business as described in
the Prospectuses; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries (as hereinafter defined) taken as a whole.
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(iv) Each subsidiary of the Company (collectively, the
"Subsidiaries") is listed on Exhibit A hereto, together with its
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jurisdiction of incorporation and the beneficial ownership interest of
the Company therein. Exhibit B hereto sets forth all Subsidiaries of
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the Company which are, individually or on a consolidated basis, material
to the operations of the Company and its Subsidiaries and the conduct of
their respective businesses (collectively, the "Significant
Subsidiaries"). Each Significant Subsidiary has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectuses; and each Subsidiary is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification; all of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly issued and
is fully paid and nonassessable; and, except as described in the
Prospectuses, the capital stock of each Subsidiary is owned by the
Company, directly or through Subsidiaries, free and clear of any
mortgage, pledge, lien, security interest, restriction upon voting or
transfer, claim or incumbency of any kind; and there are no rights
granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) to acquire any such capital
stock, any additional capital stock or any other securities of any
Subsidiary.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement and the Subscription Agreement on each Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully
paid and nonassessable and will conform in all material respects to the
description thereof contained in the Prospectuses; and, except as
described in the Prospectuses, the stockholders of the Company have no
preemptive rights with respect to the Offered Securities which have not
been waived.
(vi) Except as described in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any third
party that would give rise to a valid claim against the Company or any
U.S. Underwriter or Manager for a brokerage commission, finder's fee or
other like payment in connection with the transactions contemplated by
this Agreement or the Subscription Agreement.
(vii) Except as described in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act; and
there are no legal or governmental proceedings, statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statements or Prospectuses or required to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(viii) The Offered Securities have been approved for listing on
the Official Market of the AEX-Effectenbeurs nv (the "Amsterdam Stock
Exchange"), subject to notice of issuance, and the Offered Securities in
the form of New York Shares (as defined in the Prospectuses) have been
approved for listing on the New York Stock Exchange (the "NYSE") subject
to notice of issuance.
(ix) No consent, approval or authorization, and no order,
registration or qualification of, or filing with, any third party
(whether acting in an individual, fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is required for
the consummation of the transactions to be effected by the Company, the
Selling Shareholder and their respective subsidiaries contemplated by this
Agreement or the Subscription Agreement, except such as have been obtained
and made under the Act and such as may be required under state or foreign
securities laws in connection with the offer and sale of the Offered
Securities. The Reorganization has been completed, and no consent,
approval or authorization, and no order, registration or
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qualification of, or filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any governmental or regulatory
agency or body or any court which has not been obtained is required in
connection therewith.
(x) Except as described in the Prospectuses, under current laws
and regulations of The Netherlands and any political subdivision thereof,
all dividends and other distributions declared and payable on the Offered
Securities may be paid by the Company to the holder thereof in United
States dollars (including, without limitation, payments on any Offered
Securities in the form of New York Shares), and all such payments made to
holders thereof who are non-residents of The Netherlands will not be
subject to income, withholding or other taxes under laws and regulations
of The Netherlands and any political subdivision or taxing authority
thereof or therein and will otherwise be free and clear of any other tax,
duty, withholding or deduction in The Netherlands or any political
subdivision or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in The Netherlands
or any political subdivision or taxing authority thereof or therein.
(xi) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the U.S. Underwriters or Managers to The Netherlands or any
political subdivision or taxing authority thereof or therein in
connection with (A) the sale and delivery of the Offered Securities to or
for the respective accounts of the U.S. Underwriters and Managers or (B)
the sale and delivery outside The Netherlands by the U.S. Underwriters
and Managers of the Offered Securities to the initial purchasers thereof.
(xii) The execution, delivery and performance of this Agreement and
the Subscription Agreement, and the consummation of the transactions
herein and therein contemplated and of the Reorganization, will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under (A) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their properties or operations, or any agreement or
instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the properties
or operations of the Company or any Subsidiary is subject, or (B) the
articles of association or the charter or by-laws of the Company or any
Subsidiary, as the case may be, except, in the case of clause (A), for
such conflicts, breaches, violations or defaults which could not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole, or a material adverse effect on the consummation of the
transactions contemplated by this Agreement or the Subscription
Agreement; and the Company has full corporate power and authority to
consummate the Reorganization and perform its obligations as contemplated
by this Agreement and the Subscription Agreement.
(xiii) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company.
(xiv) Except as described in the Prospectuses, the Company and its
Significant Subsidiaries have good and marketable title to all material
real properties and all other material properties and material assets
described in the Prospectuses as being owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as described in the Prospectuses, the Company
and its Significant Subsidiaries hold any material leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof by
them and neither the Company nor any Significant Subsidiary has been
notified of any material claim that has been asserted by anyone adverse to
the rights of the Company or any Significant Subsidiary under any of such
leases.
(xv) The Company and its Subsidiaries possess adequate
certificates, authorizations, licenses or permits issued by appropriate
governmental agencies or bodies necessary to conduct the
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business now operated by them and have not received any written notice of
threatened or actual proceedings (and are not aware of any facts that
would be expected to result in such proceeding) relating to the revocation
or modification of any such certificate, authorization, license or permit
that, if determined adversely to the Company or any of its Subsidiaries,
could reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole. The Company and its Subsidiaries are in compliance with
their respective obligations under such certificates, authorizations,
licenses or permits and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination of such
certificates, authorizations, licenses or permits or violation of such
laws or regulations, except for such non-compliance and events as could
not reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole.
(xvi) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries,
taken as a whole.
(xvii) The Company and its Subsidiaries own or have obtained valid
and enforceable licenses for all material trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, copyright registrations, computer software, trade secrets and
proprietary or other intellectual property owned, sold or used by or
licensed to or by the Company or any of its Subsidiaries or that are
necessary for the conduct of their businesses (collectively, the
"Intellectual Property"), and the Company and its Subsidiaries are not
aware of any claim or challenge by any third party to the rights of the
Company or its Subsidiaries with respect to any Intellectual Property or
to the validity or scope of the Intellectual Property and neither the
Company nor any Subsidiary has any claim against any third party with
respect to infringement of any Intellectual Property, which claims or
challenges, if adversely determined, could reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole.
(xviii) Except as described in the Prospectuses and except as
could not reasonably be expected to, individually or in the aggregate,
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries, taken as a whole, the properties, assets and operations of
each of the Company and its Subsidiaries are in compliance with all
applicable federal, state, local and foreign laws, rules and regulations,
orders, decrees, judgments, permits and licenses relating to worker health
and safety, and to the protection and clean-up of the natural environment
and to the protection or preservation of natural resources, including,
without limitation, those relating to the processing, manufacturing,
generation, handling, disposal, transportation or release of hazardous
materials (collectively, "Environmental Laws"). With respect to such
properties, assets and operations, there are no events, conditions,
circumstances, activities, practices, incidents, actions or plans of the
Company or any of its Subsidiaries of which the Company is aware that may
interfere with or prevent compliance or continued compliance with
applicable Environmental Laws in a manner that could reasonably be
expected to, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries, taken as a
whole. Except as described in the Prospectuses and except as could not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries,
taken as a whole, (A) to the Company's knowledge, none of the Company or
any of its Subsidiaries is the subject of any federal, state, local or
foreign investigation pursuant to Environmental Laws, (B) none of the
Company or any of its Subsidiaries has received any written notice or
claim pursuant to Environmental Laws and (C) there are no pending, or, to
the knowledge of the Company, threatened actions, suits or proceedings
against the Company, any of its Subsidiaries or its properties, assets or
operations, in connection with any such Environmental
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Laws. The term "hazardous materials" shall mean those substances that are
regulated by or pursuant to any applicable Environmental Laws.
(xix) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in
which employees of the Company or any Subsidiary participate or as to
which the Company or any Subsidiary has any liability (the "ERISA Plans")
is in compliance with the applicable provisions of ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"). Neither the
Company nor any Subsidiary has any liability with respect to the ERISA
Plans, nor does the Company expect that any such liability will be
incurred, that could reasonably be expected to, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries taken as a whole. Except as described in the
Prospectuses, the value of the aggregate vested and nonvested benefit
liabilities under each of the ERISA Plans that is subject to Section 412
of the Code, determined as of the end of such ERISA Plan's most recent
ended plan year on the basis of the actuarial assumptions specified for
funding purposes in such Plan's most recent actuarial valuation report,
did not exceed the aggregate current value of the assets of such ERISA
Plan allocable to such benefit liabilities. Neither the Company nor any
Subsidiary has any liability, whether or not contingent, with respect to
any ERISA Plan that provides post-retirement welfare benefits that could
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole. The descriptions of the Company's stock option,
incentive compensation and other employee benefits plans or arrangements,
and the options or other rights granted and exercised thereunder, set
forth in the Prospectuses are accurate in all material respects.
(xx) (A) Neither the Company nor any of its Subsidiaries is in
violation of its articles of incorporation or of its charter or by-laws,
as the case may be, (B) neither the Company nor any of its Subsidiaries
is in violation of any applicable law, ordinance, administrative or
governmental rule or regulation, or any order, decree or judgment of any
court or governmental agency or body having jurisdiction over the Company
or any of its Subsidiaries and (C) no event of default or event that, but
for the giving of notice or the lapse of time or both, would constitute
an event of default exists, and the sale of the Offered Securities will
exist, under any indenture, mortgage, loan agreement, note, lease,
permit, license or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or to which any of the properties,
assets or operations of the Company or any such Subsidiary is subject,
except, in the case of clauses (B) and (C), for such violations and
defaults that could not reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company
and its Subsidiaries, taken as a whole.
(xxi) The Company and its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the businesses in which they are
engaged; all material policies of insurance and material performance
bonds insuring the Company or any Subsidiary or their businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its Subsidiaries are in compliance with such policies and
instruments in all material respects; and except as described in the
Prospectuses or as could not reasonably be expected, individually or in
the aggregate, to have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries, taken as a whole, there are no claims by the
Company or a Subsidiary under any such policy or instrument as to which
any insurance company is denying liability or defending under a
reservation of rights clause.
(xxii) Except as described in the Prospectuses, there are no
pending actions, suits or proceedings against or, to the knowledge of the
Company, affecting the Company, any of its Subsidiaries or any of their
respective properties, assets or operations that, if determined adversely
to the Company or any of its Subsidiaries, could reasonably be expected
to, individually or in the aggregate, have a material adverse effect on
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries, taken as a whole, or
could materially
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and adversely affect the ability of the Company to perform its obligations
under this Agreement or the Subscription Agreement; and no such actions,
suits or proceedings are, to the knowledge of the Company, threatened or
contemplated.
(xxiii) The financial statements, together with the related
schedules and notes, included in each Registration Statement and the
Prospectuses present fairly, in all material respects, the financial
position of the Company and its consolidated Subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, and have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
the pro forma financial information included in the Prospectuses has been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial information, the assumptions used in
preparing such pro forma financial information provide a reasonable basis
for presenting the effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. The other
financial and statistical information set forth in the Prospectuses
present fairly, in all material respects, the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(xxiv) Since the dates as of which information is given in the
Registration Statements and the Prospectuses, and except as has occurred
as described in the Prospectuses, (i) the Company and its Subsidiaries,
taken as a whole, have not incurred any material liability or obligation
(indirect, direct or contingent) or entered into any material verbal or
written agreement or other transaction that is not in the ordinary course
of business or that could result in a material reduction in the future
earnings of the Company and its Subsidiaries taken as a whole; (ii) the
Company and its Subsidiaries, taken as a whole, have not sustained any
material loss or interference with their business or properties from
fire, flood, windstorm, accident or other calamity (whether or not
covered by insurance); (iii) there has been no material change, except as
contemplated by the Prospectuses, in the indebtedness of the Company and
except as contemplated by the Prospectuses, no change in the capital
stock of the Company and except as contemplated by the Prospectuses, no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock; and (iv) there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries taken as a whole.
(xxv) The Company is not and, after giving effect to the offering
and sale of the Offered Securities will not be, an "investment company"
or any entity "controlled" by an "investment company" as defined in the
Investment Company Act of 1940.
(xxvi) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Offered Securities and the Company has not distributed and will not
distribute any offering material in connection with the offering and sale
of the Offered Securities other than any preliminary prospectus filed
with the Commission or the Prospectuses or other materials, if any,
permitted by the Act or the Rules and Regulations.
(xxvii) The Company has delivered as requested to the U.S.
Representatives and the Managers true and correct copies of all documents
executed in connection with the Reorganization and there have been no
amendments, alterations, modifications or waivers of any of the
provisions thereof.
(xxviii) Each of the Company and the Subsidiaries has timely filed
(or joined in the filing of) all material federal, state, local and
foreign tax reports and returns that it was required to file (or join in
the filing of) and such reports and returns are complete and correct in
all material respects. All material taxes shown to be due on such
reports and returns or otherwise relating to periods ending on or before
the Closing Date, owed by the Company or any of its Subsidiaries
8
(whether or not shown on any report or return) or to which the Company or
any of the Subsidiaries may be liable under the Treasury regulations
section 1.1502-6 (or analogous state or foreign law provisions) on account
of having been a member of an "affiliated group" as defined in section
1504 of the Code (or other group filing on a combined basis) at any time
on or prior to the Closing Date, if required to have been paid, have been
paid, except such tax assessments, if any, as are being contested in good
faith and as to which reserves have been provided which the Company
reasonably believes are adequate. To the Company's knowledge after due
inquiry, the charges, accruals and reserves on the books of the Company
and the Subsidiaries in respect of any tax liability for any year not
finally determined are adequate to meet any assessments or reassessments.
No tax deficiency has been asserted or threatened against the Company or
any of the Subsidiaries that could reasonably be expected to, individually
or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), business, properties or results of operations of
the Company and the Subsidiaries taken as a whole.
(xxix) The Company is neither a foreign personal holding company
("FPHC") within the meaning of section 552 of the Code nor a passive
foreign investment company ("PFIC") within the meaning of section 1296 of
the Code, is not likely to become an FPHC, a PFIC or a controlled foreign
corporation ("CFC") (within the meaning of section 957 of the Code), and
the Company is not aware of any contemplated action by any shareholder or
shareholders of the Company that would be likely to cause the Company to
become an FPHC, PFIC or CFC.
(xxx) Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company as required by the Securities Act.
(xxxi) The Company has obtained the written agreement of each
director and each officer of the Company, in form reasonably satisfactory
to the U.S. Underwriters, that such person will not, for a period of 180
days after the date of the initial public offering of the Offered
Securities, offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or request or demand the filing with the
Commission of a registration statement under the Act relating to, any
Securities or securities convertible into or exchangeable or exercisable
for any Securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of CSFBC, other than the exercise of employee stock options
outstanding on the date hereof.
(b) The Selling Shareholder represents and warrants to, and agrees
with, the several U.S. Underwriters that:
(i) The Selling Shareholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by the Selling Shareholder hereunder
and under the Subscription Agreement on such Closing Date and full right,
power and authority to enter into this Agreement and the Subscription
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Shareholder on such Closing
Date hereunder and thereunder; and upon the delivery of and payment for
the Offered Securities on each Closing Date hereunder and thereunder the
U.S. Underwriters and Managers will acquire valid and unencumbered title
to the Offered Securities to be delivered by the Selling Shareholder
on such Closing Date, assuming each of the U.S. Underwriters and Managers
has purchased the Offered Securities purchased by it in good faith and
without notice of any adverse claim.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statement therein not misleading and (C) on the date of this Agreement,
and at the time of filing of the Prospectuses pursuant to Rule 424(b) or
(if no such filing is required)
9
at the Effective Date of the Additional Registration Statement in which
the Prospectuses are included, and on each Closing Date, none of any
Registration Statement or the Prospectuses includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectuses, in the light of the
circumstances under which they were made) not misleading. If the Effective
Time of the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement: on the Effective Date of the Initial
Registration Statement and on each Closing Date, none of the Initial
Registration or the Prospectuses will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectuses, in the light of the circumstances under which they were
made) not misleading. The two preceding sentences shall apply solely to
statements in or omissions from a Registration Statement or either of the
Prospectuses based upon information relating to the Selling Shareholder or
contained in a representation or warranty given by the Selling Shareholder
in this Agreement.
(iii) Except as described in the Prospectuses, there are no
contracts, agreements or understandings between the Selling Shareholder
and any third party that would give rise to a valid claim against the
Selling Shareholder or any U.S. Underwriter or Manager for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement or the Subscription
Agreement.
(iv) This Agreement and the Subscription Agreement have been duly
authorized, executed and delivered by the Selling Shareholder.
(v) The execution, delivery and performance of this Agreement and
the Subscription Agreement by the Selling Shareholder and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under (A) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, have jurisdiction over the Selling Shareholder or
any of its properties or operations, or any agreement or instrument to
which the Selling Shareholder is a party or by which the Selling
Shareholder is bound or to which any of the properties or operations of
the Selling Shareholder is subject, or (B) the charter or by-laws of the
Selling Shareholder, except, in the case of clause (A), for such
conflicts, breaches, violations or defaults which could not reasonably be
expected to, individually or in the aggregate, have a material adverse
effect on the consummation of the transactions contemplated by this
Agreement or the Subscription Agreement; and the Selling Shareholder has
full power and authority to sell or cause the sale of the Offered
Securities as contemplated by this Agreement and the Subscription
Agreement.
(vi) No consent, approval or authorization, and no order,
registration or qualification of, or filing with, or with any third party
(whether acting in an individual, fiduciary or other capacity) or any
court or governmental or regulatory agency or body, is required for the
performance by the Selling Shareholder of its obligations under this
Agreement or the Subscription Agreement, except such as have been obtained
under the Act and such as may be required under state or foreign
securities laws in connection with the offer and sale of the Offered
Securities.
(vii) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to or that could reasonably
be expected to cause or result in stabilization or manipulation of the
price of the Offered Securities and the Selling Shareholder has not
distributed and will not distribute any offering material in connection
with the offering and sale of the Offered Securities other than any
preliminary prospectus filed with the Commission or the Prospectuses or
other materials, if any, permitted by the Act or the Rules and
Regulations.
(viii) There are no pending (or, to the Selling Shareholder's
knowledge, threatened or contemplated) actions, suits or proceedings or
investigations against or affecting the Selling Shareholder or any of its
properties, assets or operations that could reasonably be expected to,
10
individually or in the aggregate, have a material adverse effect on the
ability of the Selling Shareholder to perform its obligations under this
Agreement.
(ix) The Selling Shareholder is not a "foreign person" within the
meaning of section 1445 of the Code, and Selling Shareholder shall
furnish to you on or prior to the First Closing Date (as defined below) a
certification of the Selling Shareholder's non-foreign status, as set
forth in Treasury regulations section 1.1445-2(b).
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Selling Shareholder agrees to
sell to the U.S. Underwriters, and the U.S. Underwriters agree, severally and
not jointly, to purchase from the Selling Shareholder, at a purchase price of
U.S.$______ per share, the respective numbers of shares of U.S. Firm Securities
set forth opposite the names of the U.S. Underwriters in Schedule A hereto.
The Selling Shareholder will deliver the U.S. Firm Securities to the
Representatives for the accounts of the U.S. Underwriters, against payment of
the purchase price in Federal (same day) funds by wire transfer to an account
at a bank specified by the Selling Shareholder to, and reasonably acceptable
to, CSFBC, drawn to the order of the Selling Shareholder, at the office of
Xxxxx Xxxxxxxxxx, 1301 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000,
at 10:00 A.M., New York time, on _____________, 1997, or at such other time not
later than seven full business days thereafter as CSFBC and the Selling
Shareholder agree (such time being herein referred to as the "First Closing
Date"). For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities
for all the Offered Securities sold pursuant to the U.S. Offering and the
International Offering. The certificates for the U.S. Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice, and will be made available
for checking and packaging at the office of Credit Suisse First Boston
Corporation, New York, New York, at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Shareholder from time to time not more than 30 days subsequent to the
date of the Prospectuses, the U.S. Underwriters may purchase all or less than
all of the U.S. Optional Securities at the purchase price per Security to be
paid for the U.S. Firm Securities. The U.S. Optional Securities to be purchased
by the U.S. Underwriters on any Optional Closing Date shall be in the same
proportion to all the Optional Securities to be purchased by the U.S.
Underwriters and the Managers on such Optional Closing Date as the U.S. Firm
Securities bear to all the Firm Securities. The Selling Shareholder agrees to
sell to the U.S. Underwriters such U.S. Optional Securities and the U.S.
Underwriters agree, severally and not jointly, to purchase such U.S. Optional
Securities. Such U.S. Optional Securities shall be purchased for the account
of each U.S. Underwriter in the same proportion as the number of shares of U.S.
Firm Securities set forth opposite such U.S. Underwriter's name bears to the
total number of shares of U.S. Firm Securities (subject to adjustment by CSFBC
to eliminate fractions) and may be purchased by the U.S. Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
U.S. Firm Securities. No Optional Securities shall be sold or delivered unless
the U.S. Firm Securities and the International Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at
any time upon notice by CSFBC on behalf of U.S. Underwriters and the Managers to
the Selling Shareholder. It is understood that CSFBC is authorized to make
payment for and accept delivery of such Optional Securities on behalf of the
U.S. Underwriters and Managers pursuant to the terms of CSFBC's instructions to
the Selling Shareholder.
Each time for the delivery of and payment for the U.S. Optional
Securities, being herein referred to as an "Optional Closing Date", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be agreed
by CSFBC and the Selling Shareholder but shall be not later than five full
business days after written notice of election to purchase Optional Securities
is given. The Selling Shareholder will deliver the U.S. Optional Securities
being purchased on each Optional Closing Date to the Representatives for the
accounts of the several U.S.
11
Underwriters, against payment of the purchase price in Federal (same day) funds
by wire transfer to an account specified by the Selling Shareholder reasonably
acceptable to CSFBC, at the above office of Xxxxx Xxxxxxxxxx. The certificates
for the U.S. Optional Securities will be in definitive form, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the above office of CSFBC, at a reasonable time in
advance of such Optional Closing Date.
4. Offering by U.S. Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public
as set forth in the U.S. Prospectus.
It is further understood that, at the request of the Company, up to an
aggregate of 525,000 Firm Securities will be reserved for offering and sale, at
the initial public offering price, to certain officers, directors and employees
(current and former) of the Company who have heretofore delivered to CSFBC, in
a timely manner and in form satisfactory to CSFBC and its counsel, written
indications of interest to purchase the Offered Securities. Under no
circumstances shall you or any U.S. Underwriter or Manager be liable to the
Company or any of such persons for any action taken or omitted in good faith in
connection with such offering and sale to such persons. Any Offered Securities
not purchased by such persons at the First Closing Date will be offered to the
public by the U.S. Underwriters and the Managers on the same terms as the other
Offered Securities offered by the Prospectuses.
5. Certain Agreements of the Company and the Selling Shareholder. (A)
The Company agrees with the several U.S. Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file each of the Prospectuses with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time either
Prospectus is printed and distributed to any U.S. Underwriter or Manager,
or will make such filing at such later date as shall have been consented
to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or either of the related prospectuses or the Initial Registration
Statement, the Additional Registration Statement (if any) or either of the
Prospectuses and will not effect such amendment or supplementation without
CSFBC's prior consent (which consent shall not be unreasonably withheld);
and the Company will also advise CSFBC promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or either of the Prospectuses
and of the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any U.S. Underwriter, Manager or dealer, any event occurs as a
result of which either or both of the Prospectuses as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they
12
were made, not misleading, or if it is necessary at any time to amend
either or both of the Prospectuses to comply with the Act, the Company
will promptly notify CSFBC of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither CSFBC's consent to, nor the U.S.
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of the
Registration Statement (five of which will be signed and will include all
exhibits), each preliminary prospectus relating to the U.S. Securities,
and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
U.S. Underwriter or dealer, the U.S. Prospectus and all amendments and
supplements to such documents, in each case in such quantities as CSFBC
reasonably requests. The U.S. Prospectus shall be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the U.S. Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided that the Company
--------
shall not be required to qualify to do business in any jurisdiction where
it is not now qualified or to file a general consent to service of
process in any jurisdiction.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
U.S. Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time, such other public
information concerning the Company as CSFBC may reasonably request.
(h) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any Securities or securities convertible into or
exchangeable or exercisable for any Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except: (i) the contribution
by the Company to the Management Plan (as defined in the Prospectuses) of
________ shares of Securities immediately prior to the consummation of
the U.S. Offering, as described in the Prospectuses and (ii) grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options or the exercise of any other employee stock options outstanding
on the date hereof.
(i) The Company agrees with the several U.S. Underwriters and the
Selling Shareholder that the Company will pay all expenses incident to
the performance of the obligations of the
13
Selling Shareholder and the obligations of the Company under this
Agreement for any filing fees and other expenses (including fees and
disbursements of counsel not to exceed $12,500) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the U.S. Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for the fees and expenses in connection with qualification of
the Offered Securities for listing on the NYSE and the Amsterdam Stock
Exchange, for any transfer taxes on the sale of the Offered Securities to
the U.S. Underwriters and for expenses incurred in distributing
preliminary prospectuses and the Prospectuses (including any amendments
and supplements thereto) to the U.S. Underwriters. The agreement in this
paragraph (i) shall not modify the separate agreement between the Selling
Shareholder and the Company regarding the payment of expenses set forth in
the Registration Rights Agreement (as defined in the Prospectuses) between
such parties dated March __, 1997.
(B) The Selling Shareholder agrees with the several U.S.
Underwriters that:
(a) The Selling Shareholder will indemnify and hold harmless the
U.S. Underwriters against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Selling Shareholder hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Selling Shareholder is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the Selling Shareholder shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts that
would have been received if no withholding or deduction had been made.
(b) The Selling Shareholder agrees to deliver to CSFBC, Attention:
Transactions Advisory Group, on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(c) The Selling Shareholder agrees, for a period of 180 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly or request or demand the filing with the Commission of a
registration statement under the Act relating to, any Securities of the
Company or securities convertible into or exchangeable or exercisable for
any Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except the sale of Offered Securities to the U.S. Underwriters and
the Managers pursuant to this Agreement and the Subscription Agreement.
6. Conditions of the Obligations of the U.S. Underwriters. The
obligations of the several U.S. Underwriters to purchase and pay for the U.S.
Firm Securities on the First Closing Date and the U.S. Optional Securities to
be purchased on each Optional Closing Date will be subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholder, to the accuracy of the statements of Company and Selling
Shareholder officers made pursuant to the provisions hereof, to the performance
by the Company and the Selling Shareholder of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of Xxxxxx Xxxxxxxx LLP
14
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements examined by
them and included in the Registration Statements comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated
net assets, as compared with amounts shown on the latest balance
sheet included in the Prospectuses, except in all instances for
changes, increases or decreases that the Registration Statement
discloses have occurred or may occur;
(iii) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date of
the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding period
of the previous year and with the period of corresponding length
ended the date of the latest income statement included in the
Prospectus, in consolidated net sales, income from operations,
income before extraordinary items or net income, except in all
instances for changes, increases or decreases that the Registration
Statement discloses have occurred or may occur;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements with the
results obtained from inquiries, a reading of general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter; and
(v) (A) they have read the unaudited pro forma income
statement and other pro forma financial information included in the
Registration Statements (collectively, the "Pro Forma
Information");
(B) they have made inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters about (i) the basis for the
determination of the pro forma adjustments , and (ii) whether
the unaudited pro forma consolidated income statement
complies as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X under the Act;
(C) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the Pro Forma Information; and
(D) on the basis of such procedures, and such other
inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe
that the Pro Forma Information does not comply as to form in
all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the Act or
that the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of such Pro
Forma Information.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean
15
the initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but the
Effective Time of the Additional Registration is subsequent to such
execution and delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectuses" shall mean the prospectuses included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time either
Prospectus is printed and distributed to any U.S. Underwriter or Manager,
or shall have occurred at such later date as shall have been consented to
by CSFBC. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, each of the
Prospectuses shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company,
the Selling Shareholder or the Representatives, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
Subsidiaries which, in the judgment of a majority in interest of the U.S.
Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the U.S. Securities; (ii)
any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation
of trading in securities generally on the NYSE or the Amsterdam Stock
Exchange or any setting of minimum prices for trading on any such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by either U.S. Federal or New York authorities or in
Amsterdam declared by the relevant authorities in The Netherlands; or (v)
any outbreak or escalation of major hostilities in which the United States
or The Netherlands is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in
the judgment of a majority in interest of the U.S. Underwriters including
the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the U.S. Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx, Xxxxxx & Xxxxxxx, United States counsel for the
Company and the Selling Shareholder, to the effect that:
(i) There are no contracts, agreements or understandings
known to such counsel between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement;
16
(ii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities will not be, an
"investment company" or an entity "controlled" by an "investment
company" as defined in the Investment Company Act of 1940;
(iii) To the knowledge of such counsel, no consent, approval
or authorization and no order, registration or qualification of, or
filing with, any third party (whether acting in an individual
fiduciary or other capacity) or any governmental or regulatory
agency or body or any court is required to be obtained or made by
the Company or the Selling Shareholder for the consummation of the
transactions to be effected by the Company or the Selling
Shareholder contemplated by this Agreement or the Subscription
Agreement, except such as have been obtained and made under the Act
and such as may be required under state securities laws in
connection with the offer and sale of the Offered Securities; and
to the knowledge of such counsel, the execution, delivery and
performance of this Agreement and the Subscription Agreement and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Company or any Subsidiary of the Company or the Selling
Shareholder or any of their properties or operations, or any
material agreement or instrument identified to such counsel to
which any of them is a party or by which any of them is bound or to
which any of their properties is subject, or the charter or by-laws
of any such Subsidiary or the Selling Shareholder, and the Selling
Shareholder has full power and authority to consummate the
transactions to be effected by it contemplated by this Agreement
and the Subscription Agreement;
(iv) To the knowledge of such counsel, the Selling
Shareholder had valid and unencumbered title to the Offered
Securities delivered by such Selling Shareholder on such Closing
Date and had full corporate power and authority to sell, assign,
transfer and deliver the Offered Securities delivered by the
Selling Shareholder on such Closing Date hereunder; and, assuming
each of the U.S. Underwriters and Managers has purchased the
Offered Securities purchased by it in good faith and without notice
of any adverse claim, the several U.S. Underwriters have acquired
valid and unencumbered title to the Offered Securities purchased by
them on such Closing Date hereunder;
(v) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, each of the Prospectuses
either were filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified
therein or were included in the Initial Registration Statement or
the Additional Registration Statement (as the case may be), and, to
the knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and each
Registration Statement and each amendment or supplement thereto, as
of their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act and the
Rules and Regulations; the descriptions in the Registration
Statements and the Prospectuses of statutes, contracts and other
documents and, to the knowledge of such counsel, legal and
governmental proceedings, are accurate in all material respects and
fairly present the information required to be shown with respect to
such statutes, proceedings, contracts and other documents;
(vi) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company and the
Selling Shareholder;
(vii) The statements made in the U.S. Prospectuses under
"Taxation - United States Federal Income Taxes", insofar as they
relate to provisions of U.S. federal tax law
17
therein described, have been reviewed by such counsel and fairly
present the information disclosed therein in all material respects;
(viii) Except as described in the Prospectuses, the
stockholders of the Company have no preemptive rights with respect
to the Offered Securities; and
(ix) Such counsel has participated in conferences with
officers and other representatives of the Company and the Selling
Shareholder, counsel for the Company, representatives of the
independent public accountants of the Company and representatives
of the U.S. Underwriters and Managers at which the contents of the
Registration Statement and the Prospectuses 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 the Prospectuses (except to the extent described in
(v) and (vii) above), such counsel shall advise that, on the basis
of the foregoing (relying as to materiality to a large extent upon
the opinions of officers and other representatives of the Company
and the Selling Shareholder), no facts have come to the attention
of such counsel that lead it to believe that the Registration
Statement, at the time it 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 Prospectuses, as of their dates
and as of such Closing 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 the
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not express
any comment with respect to the financial statements and schedules
and other financial and statistical data contained in the
Registration Statement and the Prospectuses).
In giving such opinions, such counsel may limit its opinion to laws
of the State of New York, the General Corporation Law of the State of Delaware
and the Federal laws of the United States of America, and matters specifically
governed thereby.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx X. Xxxxx, General Counsel of the Company, to the effect
that:
(i) Each of the Company's Significant Subsidiaries has been
duly incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectuses; and each of the Company and its Subsidiaries is duly
qualified to transact business as a foreign corporation in good
standing in all other jurisdictions in which it owns, leases or
operates properties or in which the conduct of its business or its
ownership, leasing or operation of property requires such
qualification, except to the extent that the failure to be so
qualified or in good standing could not reasonably be expected to
have a material adverse effect on the Company and its Subsidiaries,
taken as a whole; and all of the outstanding shares of capital stock
of the Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and all such
shares shown on Exhibit A hereof are owned by the Company, directly
---------
or through Subsidiaries, free and clear of any mortgage, pledge,
lien, security interest, restriction upon voting or transfer, claim
or encumbrance of any kind; and there are no rights granted to or in
favor of any third party (whether acting in an individual, fiduciary
or other capacity) to acquire any such capital stock, any additional
capital stock or any other securities of any Subsidiary;
(ii) No consent, approval or authorization and no order,
registration or qualification of, or filing with, any third party
(whether acting in an individual fiduciary or other capacity) or any
governmental or regulatory agency or body or, any court is required
to be obtained or made by the Company for the consummation of the
transactions to be effected by the Company or its Subsidiaries
contemplated by this Agreement or the
18
Subscription Agreement, except such as have been obtained and made
under the Act and such as may be required under state or foreign
securities laws in connection with the offer and sale of the Offered
Securities; the execution, delivery and performance of this
Agreement and the Subscription Agreement and the consummation of the
transactions herein and therein contemplated and of the
Reorganization will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (A) any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Company or any Subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or
any such Subsidiary is a party or by which the Company or any such
Subsidiary or the Selling Shareholder is bound or to which any of
the properties of the Company or any such Subsidiary is subject, or
(B) the charter or by-laws of the Company or any such Subsidiary,
except, in the case of clause (A), for such conflicts, breaches,
violations, or defaults which could not reasonably be expected to,
individually or in the aggregate, have a material adverse effect on
the condition (financial or other), business, properties or results
of operations of the Company and its Subsidiaries, taken as a whole,
or a material adverse effect on the consummation of the transactions
contemplated by this Agreement or the Subscription Agreement; and
the Company has full power and authority to consummate the
transactions to be effected by it contemplated by this Agreement,
the Subscription Agreement and the Reorganization;
(iii) The Company and its Subsidiaries possess adequate
certificates, authorizations, licenses or permits issued by
appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and to such counsel's knowledge have
not received any written notice of threatened or actual proceedings
relating to the revocation or modification of any such certificate,
authorization, license or permit that, if determined adversely to
the Company or any of its Subsidiaries, could reasonably be expected
to, individually or in the aggregate, have a material adverse effect
on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a
whole. To the knowledge of such counsel, the Company and its
Subsidiaries are in compliance with their respective obligations
under such certificates, authorizations, licenses or permits and to
such counsel's knowledge no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination of
such certificates, authorizations, licenses or permits or violation
of such laws or regulations, except for such non-compliance and
events as could not reasonably be expected to, individually or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its Subsidiaries taken as a whole;
(iv) Except as described in the Prospectuses, to the
knowledge of such counsel, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties, assets or
operations that, if determined adversely to the Company or any of
its Subsidiaries, could reasonably be expected to, individually or
in the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its Subsidiaries taken as a whole, or could
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or the Subscription
Agreement; and, to the knowledge of such counsel, no such actions,
suits or proceedings are threatened or contemplated;
(v) To the knowledge of such counsel, except as described in
the Prospectuses and except as could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect
on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a
whole, the properties, assets and operations of the Company and its
Subsidiaries are in compliance with all applicable Environmental
Laws. To the knowledge of such counsel, except as described in the
Prospectuses and except as could not reasonably be expected,
individually or in the
19
aggregate, to have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its Subsidiaries taken as a whole, none of the
Company or any of its Subsidiaries is the subject of any federal,
state, local or foreign investigation pursuant to Environmental
Laws, and none of the Company or any of its Subsidiaries has
received any written notice or claim pursuant to Environmental Laws.
For the purpose of this opinion, "Environmental Laws" means all
federal, state, local and foreign laws, statutes, codes, ordinances,
rules, regulations, directives, permits, licenses, or orders
relating to the natural environment, or employee health or safety,
including, but not limited to, any law, statute, code, ordinance,
rule, regulation, directive, permit, license or order relating to
(1) the release, discharge or emission of any pollutant into the
natural environment, (2) damage to any natural resource, (3) the
use, handling or disposal of any chemical substance or (4) workplace
or worker safety and health, as such requirements are promulgated by
the specifically authorized governmental authority responsible for
administering such requirements, or imposed by judicial order or
fiat;
(vi) Such counsel does not know of any legal or governmental
proceedings required to be described in a Registration Statement or
the Prospectuses which are not described as required or of any
contracts or documents of a character required to be described in a
Registration Statement or the Prospectuses or to be filed as
exhibits to a Registration Statement which are not described or
filed as required; and
(vii) Such counsel has participated in conferences with
officers and other representatives of the Company and the Selling
Shareholder, counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the U.S. Underwriters and Managers at which the contents of the
Registration Statement and the Prospectuses 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 the Prospectuses (except to the extent described in (vi) above),
such counsel shall advise that, on the basis of the foregoing, no
facts have come to the attention of such counsel that lead it to
believe that the Registration Statement, at the time it 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
Prospectuses, as of their dates and as of such Closing 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 the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need not express any comment with respect to the financial
statements and schedules and other financial data contained in the
Registration Statement and the Prospectuses).
In giving such opinions, such counsel may limit its opinion to laws
of the State of Illinois, the General Corporation Law of the State of Delaware
and the Federal laws of the United States of America, and matters specifically
governed thereby, except that such counsel shall make such investigations of
law in such other jurisdictions in which the Company does business, as is
appropriate to render such opinions.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Loeff Xxxxxx Xxxxxxx, Netherlands counsel for the Company and
the Selling Shareholder, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company limited by shares (naamloze vennootschap)
under the laws of The Netherlands, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectuses; and the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
20
(ii) Chicago Bridge & Iron Company B.V. ("CBICBV") has been
duly incorporated and is an existing corporation in good standing
under the laws of The Netherlands with corporate power and
authority to own its properties and conduct its business as
described in the Prospectuses, and CBICBV is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which the ownership of or lease of property or the
conduct of its business requires such qualification; all of the
outstanding capital stock of CBICBV has been duly authorized and
validly issued and is fully paid and non-assessable and are owned
directly by the Company, free from liens, encumbrances and defects;
(iii) The Offered Securities delivered on such Closing Date
and all other outstanding Securities of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(iv) According to the Shareholders Register of the Company,
the Offered Securities are free of rights of pledge ("pandrecht")
and rights of usufruct ("vruchtgebruik");
(v) By the due execution by the Selling Shareholder and the
U.S. Underwriters and Managers of a Deed of Transfer relating to
the Offered Securities sold by such Selling Shareholder to the U.S.
Underwriters and Managers pursuant to this Agreement and the
Subscription Agreement and the written acknowledgement of such
transfer by the Company, title to such Offered Securities will
under Netherlands law validly have been transferred to the U.S.
Underwriters and Managers, free from all liens, encumbrances and
defects;
(vi) The filing of the Registration Statements with the
Commission has been duly authorized by the Company and the
Registration Statements has been duly signed on behalf of the
Company;
(vii) To the knowledge of such counsel, no consent, approval
or authorization and no order, registration, qualification of, or
filing with, any third party (whether acting in an individual,
fiduciary or other capacity) or any governmental or regulatory
agency or body or any court, in each case of The Netherlands, is
required for the consummation of the Reorganization or the
transactions contemplated by this Agreement or the Subscription
Agreement and for the listing of the Offered Securities on the
Amsterdam Stock Exchange;
(viii) To the knowledge of such counsel, the execution,
delivery and performance of this Agreement and the Subscription
Agreement and the consummation of the transactions herein and
therein contemplated and of the Reorganization, will not conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court, in each case of the Netherlands, having jurisdiction over
the Company or any Subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or
any such Subsidiary is a party or by which the Company or any such
Subsidiary is bound or to which any of the properties of the
Company or any such Subsidiary is subject, or the charter or
by-laws of the Company or any such Subsidiary, and the Company has
full power and authority to consummate the transactions
contemplated by this Agreement, the Subscription Agreement and the
Reorganization;
(ix) The Company has the power to submit, and, insofar as
the law of The Netherlands is concerned, has taken all necessary
corporate action to submit, to the jurisdiction of any United
States federal or state courts in the State of New York, County of
New York, and irrevocably to appoint ____________ as the authorized
agent of the
21
Company for the purpose described in Section 15 hereof; judgments
obtained in any such courts arising out of or in relation to the
obligations of the Company under this Agreement and the Subscription
Agreement would be enforceable against the Company in the courts of
the Netherlands;
(x) The Company is not entitled to any immunity on the basis
of sovereignty or otherwise in respect of its obligations under
this Agreement or the Subscription Agreement and could not
successfully interpose any such immunity as a defense to any suit
or action brought or maintained in respect of its obligations under
this Agreement or the Subscription Agreement; and the waiver by the
Company of immunity to jurisdiction (including the waiver of
sovereign immunity to which the Company may become entitled
subsequent to the date of this Agreement or the Subscription
Agreement) and immunity to prejudgment attachment, post-judgment
attachment and execution in any suit, action or proceeding against
it arising out of or based on this Agreement or the Subscription
Agreement is a valid and binding obligations of the Company under
Netherlands law;
(xi) Under the laws of The Netherlands currently in force,
the U.S. Underwriters and the Managers would be permitted to
commence proceedings against the Company in the competent
Netherlands courts based upon this Agreement and the Subscription
Agreement. Such competent Netherlands courts would accept
jurisdiction over any such action or proceedings and would give
effect to the choices of New York law as the proper law of this
Agreement and the Subscription Agreement;
(xii) The statements made in the Prospectuses under
"Dividend Policy", "Management", "Description of Share Capital",
"Share Certificates and Transfer" and "Service of Process and
Enforcement of Civil Liabilities", to the extent that they
constitute summaries of Netherlands law and the Company's Articles
of Association, have been reviewed by such counsel and fairly and
accurately present the information disclosed therein in all material
respects; the Offered Securities and the Company's Articles of
Association conform in all material respects to the descriptions
thereof contained in the Prospectuses;
(xiii) Except as described in the Prospectuses, under
current laws and regulation of The Netherlands and any political
subdivision or taxing authority thereof, all dividends and other
distributions declared and payable on the Offered Securities
(including, without limitation, dividend payments on any Offered
Securities in the form of New York Shares) may be paid by the
Company to the holder thereof in United States dollars; all such
payments made to holders thereof who are non-residents of The
Netherlands will not be subject to income, withholding or other
taxes under laws and regulations of The Netherlands or any
political subdivision or taxing authority thereof or therein and
will otherwise be free and clear of any other tax, duty,
withholding or deduction in The Netherlands or any political
subdivision or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in The
Netherlands or any political subdivision or taxing authority
thereof or therein;
(xiv) The opinions of such counsel set forth in the
Prospectuses under the caption "Taxation - Netherlands Taxes" are
confirmed as of such Closing Date;
(xv) No stamp or other issuance or transfer taxes of duties
and no capital gains, income, withholding or other taxes are
payable by or on behalf of the U.S. Underwriters or the Managers to
The Netherlands or to any political subdivision or having authority
thereof or therein in connection with (A) the sale and delivery by
the Company of the Offered Securities to or for the respective
accounts of the U.S. Underwriters or the Managers or (B) the sale
and delivery outside The Netherlands by the U.S. Underwriters or
the Managers of the Offered Securities to the initial purchasers
thereof in the manner contemplated herein and in the Subscription
Agreement; and
22
(xvi) Although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectuses
(other than as set forth in (xii) and (xiv) above), such counsel
has no reason to believe that any part of a Registration Statement
or any amendment thereto, as of its effective date or as of such
Closing Date , contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
either of the Prospectuses or any amendment or supplement thereto,
as of its issue date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or Prospectuses.
In giving such opinion, such counsel may rely on the opinions of
Xxxxxx, Xxxxxx & Xxxxxxx and Xxxxxx X. Xxxxx, Esq. referred to above as to
matters of laws other than the laws of The Netherlands.
(g) The Representatives shall have received from Xxxxx Xxxxxxxxxx,
counsel for the U.S. Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the
Prospectuses and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Xxxxx
Xxxxxxxxxx may rely as to all matters governed by Netherlands law upon
the opinion of Loeff Xxxxxx Xxxxxxx referred to above.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of Xxxxxx X. Xxxxx, President and Chief Executive
Officer of the Company, and Xxxxxxx X. Xxxxxxx, Vice President -
Treasurer and Chief Financial Officer of the Company, in which they shall
state that, to the best of their knowledge after reasonable
investigation: the representations and warranties of the Company in this
Agreement and the Subscription Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder and under the
Subscription Agreement at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time either Prospectus was printed and distributed to
any U.S. Underwriter or Manager; and, subsequent to the dates of the most
recent financial statements in the Prospectuses, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectuses or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three business days
prior to such Closing Date for the purposes of this subsection.
(j) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Selling Shareholder in which such
officers shall state that, to the best of their knowledge after
reasonable investigation: the representations and warranties of the
Selling Shareholder in this Agreement and the Subscription Agreement are
true and correct; and the Selling Shareholder has complied with
23
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder and under the Subscription Agreement at or prior to
such Closing Date.
(k) The Offered Shares have been approved for listing on the NYSE
and the Amsterdam Stock Exchange, in each case, subject to notice of
issuance.
(l) On such Closing Date, the Managers shall have simultaneously
purchased the International Firm Securities or the International Optional
Securities, as the case may be, pursuant to the Subscription Agreement.
(m) The Reorganization shall have been consummated; all actions
required in connection with the Reorganization shall have been taken; no
material consent, approval or authorization of, notice to, or
registration with, any person or entity which shall not have been
obtained prior to the Closing Date shall be necessary in connection with
the Reorganization, and there shall not be any pending or threatened
legal or governmental proceedings with respect thereto; the Company shall
have provided to the U.S. Underwriters and Managers copies of all
documents with respect thereto as they may reasonably request.
[(n) The $100 million bank credit facility of the Company
contemplated by the Prospectuses shall have been executed and delivered
and be in full force and effect and all conditions to borrowing
thereunder shall have been satisfied, and the Company shall have provided
to the U.S. Underwriters and Managers copies of all documents with
respect thereto as they may reasonably request.]
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the U.S.
Underwriters compliance with any conditions to the obligations of the U.S.
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each U.S. Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such U.S. Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each U.S. Underwriter for any legal or other
expenses reasonably incurred by such U.S. Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will
-------- -------
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any U.S. Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only information furnished
by any U.S. Underwriter consists of the information described as such in
subsection (c) below; and provided, further, that with respect to any
-------- -------
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any U.S. Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such U.S. Underwriter
under the Act in connection with such purchase and any such loss, claim, damage
or liability of such U.S. Underwriter results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the U.S. Prospectus
if the Company had previously furnished a sufficient quantity of copies thereof
to such U.S. Underwriter.
(b) The Selling Shareholder will indemnify and hold harmless each U.S.
Underwriter against any losses, claims damages or liabilities, joint or
several, to which such U.S. Underwriter may become subject,
24
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each U.S. Underwriter for any legal or other
expenses reasonably incurred by such U.S. Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling Shareholder will
-------- -------
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any U.S. Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any U.S. Underwriter consists of the information described as such in
subsection (c) below; and provided, further, that the Selling Shareholder shall
-------- -------
only be subject to such liability to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission is based upon
information relating to the Selling Shareholder or contained in a representation
or warranty given by the Selling Shareholder in this Agreement.
(c) Each U.S. Underwriter will severally and not jointly indemnify and
hold harmless the Company and the Selling Shareholder against any losses,
claims, damages or liabilities to which the Company or the Selling Shareholder
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, either of the Prospectuses, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such U.S. Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and the Selling Shareholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any U.S. Underwriter consists
of the following information in the U.S. Prospectus furnished on behalf of each
U.S. Underwriter: the last paragraph at the bottom of the cover page concerning
the terms of the offering by the U.S. Underwriters, the legends concerning over-
allotments and stabilizing on the inside front cover page, the concession and
reallowance figures appearing in the fifth paragraph under the caption
"Underwriting," the last sentence of the sixth paragraph under the caption
"Underwriting," and the seventh, eighth and twelfth paragraphs under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action or proceeding (including any
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under subsection (a), (b)
or (c) above, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a), (b) or (c) above. In case any such action or proceeding
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such
25
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholder on the one hand and the U.S. Underwriters
on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholder on the one hand and the U.S. Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholder on the one hand and the U.S. Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the U.S. Securities (before deducting expenses) received by the Selling
Shareholder bear to the total underwriting discounts and commissions received
by the U.S. Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholder or the
U.S. Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (e). Notwithstanding
the provisions of this subsection (e), no U.S. Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the U.S. Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such U.S.
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The U.S. Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholder under
this Section shall be in addition to any liability which the Company and the
Selling Shareholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any U.S. Underwriter
within the meaning of the Act; and the obligations of the U.S. Underwriters
under this Section shall be in addition to any liability which the respective
U.S. Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer or managing
director of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of U.S. Underwriters. If any U.S. Underwriter or U.S.
Underwriters default in their obligations to purchase U.S. Securities hereunder
on either the First or any Optional Closing Date and the number of shares of
U.S. Securities that such defaulting U.S. Underwriter or U.S. Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of U.S. Securities that the U.S. Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Selling
Shareholder for the purchase of such U.S. Securities by other persons,
including any of the U.S. Underwriters, but if no such arrangements are made by
such Closing Date the non-defaulting U.S. Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the U.S. Securities that such defaulting U.S. Underwriters agreed but failed to
purchase on such Closing Date. If any U.S. Underwriter or U.S. Underwriters so
default and the aggregate number of shares of U.S. Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares
of U.S. Securities that the U.S. Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBC and the Selling Shareholder
for the purchase of such U.S. Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without
26
liability on the part of any non-defaulting U.S. Underwriter, the Company or the
Selling Shareholder except as provided in Section 9 (provided that if such
default occurs with respect to U.S. Optional Securities after the First Closing
Date, this Agreement will not terminate as to the U.S. Firm Securities or any
U.S. Optional Securities purchased prior to such termination). As used in this
Agreement, the term "U.S. Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting U.S.
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company, the Selling Shareholder, and their respective officers and of the
several U.S. Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any U.S. Underwriter, the
Company or the Selling Shareholder, or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the U.S. Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the U.S. Securities by the
U.S. Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, the Selling Shareholder and the U.S.
Underwriters pursuant to Section 7 shall remain in effect and if any U.S.
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the U.S. Securities by the U.S. Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), or (v) of Section 6(c), the Company will reimburse the U.S. Underwriters
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
U.S. Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the U.S. Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment
Banking Department - Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Chicago Bridge
& Iron Company N.V., X.X. Xxx 00000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx,
Attention:____________, with a copy to Chicago Bridge & Iron Company, 0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: General Counsel or
if sent to Praxair, will be mailed, delivered or telegraphed and confirmed to
it at Praxair, Inc., 00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000-0000, Attention:
Vice President and Treasurer; provided, however, that any notice to an
-------- -------
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such U.S. Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of U.S. Underwriters. The Representatives will act
for the several U.S. Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives jointly or by CSFBC
will be binding upon all the U.S. Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
15. Submission to Jurisdiction. The Company and the Selling Shareholder
each hereby submit to the non-exclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company irrevocably appoints Xxxxxx X. Xxxxx, c/o
Chicago Bridge & Iron Company, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-
8929, as its authorized agent in the
27
United States upon which process may be served in any such suit or proceeding
and agrees that service of process upon such agent by registered mail, return
receipt requested, and written notice of said service to the Company by the
person serving the same to the address provided in Section 10, shall be deemed
in every respect effective service of process upon the Company in any such suit
or proceeding; provided, however, that if service is effected upon such agent,
-------- -------
the Company agrees to waive any defense based upon insufficient or improper
service of process, improper venue or forum non coveniens. The Company further
----- --- ---------
agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of this Agreement.
16. Foreign Currency Judgments. The obligation of the Company in
respect of any sum due to any U.S. Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such U.S. Underwriter of any
sum adjudged to be so due in such other currency, on which (and only to the
extent that) such U.S. Underwriter may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to such
U.S. Underwriter hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such U.S. Underwriter against
such loss. If the United States dollars so purchased are greater than the sum
originally due to such U.S. Underwriter hereunder, such Underwriter agrees to
pay to the Company an amount equal to the excess of the dollars so purchased
over the sum originally due to such U.S. Underwriter hereunder.
28
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, the
Selling Shareholder and the several U.S. Underwriters in accordance with its
terms.
Very truly yours,
CHICAGO BRIDGE & IRON COMPANY N.V.
By.........................................
Name:
Title:
PRAXAIR, INC.
By.........................................
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
UBS SECURITIES LLC
Acting on behalf of themselves and
as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By................................................
Name:
Title:
29
SCHEDULE A
NUMBER OF
U.S. FIRM SECURITIES
U.S. UNDERWRITER TO BE PURCHASED
---------------- ---------------
Credit Suisse First Boston Corporation.............
Xxxxxxx, Sachs & Co................................
Xxxxx Xxxxxx Inc...................................
UBS Securities LLC.................................
-------------
Total........................... 8,400,000
=========
30
