1
Exhibit 1.1
______________ Shares
ASM International N.V.
Common Shares
UNDERWRITING AGREEMENT
March ___ , 2000
CIBC World Markets Corp.
Xxxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxx Read LLC
c/o CIBC World Markets Corp.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
ASM International N.V., a public limited liability company
organized under the laws of the Kingdom of the Netherlands (the "Company"), and
the selling shareholder named on Schedule II attached hereto (the "Selling
Shareholder"), propose, subject to the terms and conditions contained herein, to
sell to you and the other underwriters named on Schedule I to this Agreement
(the "Underwriters"), for whom you are acting as Representatives (the
"Representatives"), an aggregate of _____________ shares (the "Firm Shares") of
the Company's Common Shares, NLG 0.01 par value (the "Common Shares"). Of the
______ Firm Shares, _____________ are to be issued and sold by the Company and
1,500,000 are to be sold by the Selling Shareholder. The Common Shares to be
sold by the Selling Shareholder are Common Shares that will be issued to the
Selling Shareholder by the Company upon exercise of a warrant dated December 3,
1998 (the "Warrant"), which exercise is taking place contemporaneously with the
execution of this Agreement. The respective amounts of the Firm Shares to be
purchased by each of the several Underwriters are set forth opposite their names
on Schedule I hereto. In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional ___________ Common Shares
(the "Option Shares") from the Company for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares.
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On the basis of the representations, warranties and
agreements contained in, and subject to the terms and conditions of, this
Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a price of $_____ per
share (the "Initial Price"), the number of Firm Shares set forth
opposite the name of such Underwriter under the column "Number of
Firm Shares to be Purchased from the Company" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 11
hereof. The Selling Shareholder agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Selling Shareholder, at the
Initial Price, the number of Firm Shares set forth opposite the
name of such Underwriter under the column "Number of Firm Shares to
be Purchased from the Selling Shareholder" on Schedule I to this
Agreement, subject to adjustment in accordance with Section 11
hereof.
(b) The Company grants to the several Underwriters an
option to purchase, severally and not jointly, all or any part of
the Option Shares at the Initial Price. The number of Option Shares
to be purchased by each Underwriter shall be the same percentage
(adjusted by the Representatives to eliminate fractions) of the
total number of Option Shares to be purchased by the Underwriters
as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the
Firm Shares by the Underwriters and may be exercised in whole or in
part at any time and from time to time within 30 days after the
date of this Agreement, in each case upon written, facsimile or
telegraphic notice, or verbal or telephonic notice confirmed by
written, facsimile or telegraphic notice, by the Representatives to
the Company no later than 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date or at least two
business days before the Option Shares Closing Date (as defined
below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the
Firm Shares Closing Date) of such purchase.
2. Delivery and Payment. Delivery by the Company and the
Selling Shareholder of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price therefor in
immediately available funds by wire transfer to the Company for the shares
purchased from the Company and to the Selling Shareholder for the shares
purchased from the Selling Shareholder, against delivery of the respective
certificates therefor to the Representatives, shall take place at the offices of
Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m., New York City time, on the third business day following the date of this
Agreement (or fourth business day following the date of this Agreement if this
Agreement is executed and delivered after the close of business on the date of
this Agreement), or at such time on such other date, not later than 10 business
days after the date of this Agreement, as shall be agreed upon by the Company
and the Representatives (such time and date of delivery and payment are called
the "Firm Shares Closing Date").
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In the event the option with respect to the Option Shares
is exercised in whole or in part on one or more occasions, delivery by the
Company of the Option Shares to the Representatives for the respective accounts
of the Underwriters and payment of the purchase price therefor in immediately
available funds by wire transfer to the Company shall take place at the offices
of Xxxxxx, Xxxx & Xxxxxxxx LLP specified above at the time and on the date
(which may be the same date as, but in no event shall be earlier than, the Firm
Shares Closing Date) specified in the notice referred to in Section 1(b) (such
time and date of delivery and payment are called the "Option Shares Closing
Date"). The Firm Shares Closing Date and the Option Shares Closing Date are
called, individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in
such names and shall be in such denominations as the Representatives shall
request at least two full business days before the Firm Shares Closing Date or,
in the case of Option Shares, on the day of notice of exercise of the option as
described in Section l(b), and shall be made available to the Representatives
for checking and packaging, at such place as is designated by the
Representatives, on the full business day before the Firm Shares Closing Date
(or the Option Shares Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering.
The Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission"), a Registration Statement (as hereinafter
defined) on Form F-3 (No. 333-_____), including a preliminary prospectus
relating to the Shares, and such amendments thereof as may have been required to
the date of this Agreement. Copies of such Registration Statement (including all
amendments thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The term
"Preliminary Prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the Registration Statement
or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The term "Registration
Statement" as used in this Agreement means the initial registration statement
(including all exhibits, financial schedules and information deemed to be a part
of the Registration Statement through incorporation by reference or otherwise),
as amended at the time and on the date it becomes effective (the "Effective
Date"), including the information (if any) deemed to be part thereof at the time
of effectiveness pursuant to Rule 430A of the Rules. If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement"), then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
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The Company and the Selling Shareholder understand that
the Underwriters propose to make a public offering of the Shares, as set forth
in and pursuant to the Prospectus, as soon after the Effective Date and the date
of this Agreement as the Representatives deem advisable. The Company and the
Selling Shareholder hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company. The
Company hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement
complied, and on the date of the Prospectus, the date any
post-effective amendment to the Registration Statement becomes
effective, the date any supplement or amendment to the Prospectus
is filed with the Commission and each Closing Date, the
Registration Statement and the Prospectus (and any amendment
thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and
the Rules and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder. The Registration Statement did not, as of the Effective
Date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and on the
other dates referred to above neither the Registration Statement
nor the Prospectus, nor any amendment thereof or supplement
thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not
misleading. When any related Preliminary Prospectus was first filed
with the Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a) of
the Rules), and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus,
as amended or supplemented, complied in all material respects with
the applicable provisions of the Securities Act and the Rules and
did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
Notwithstanding the foregoing, none of the representations and
warranties in this paragraph 4(a) shall apply to statements in, or
omissions from, the Registration Statement or the Prospectus made
in reliance upon and in conformity with information furnished in
writing to the Company by the Representatives on behalf of the
Underwriters specifically for use in the Registration Statement or
the Prospectus. With respect to the preceding sentence, the Company
acknowledges that the only information furnished in writing by the
Representatives on behalf of the several Underwriters for use in
the Registration Statement or the Prospectus is the paragraph with
respect to stabilization and the concession and reallowance figures
appearing under the caption "Underwriting" in the Prospectus.
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(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued and no
proceedings for that purpose have been instituted or are threatened
under the Securities Act. Any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424(b) of the Rules has
been or will be made in the manner and within the time period
required by such Rule 424(b).
(c) The documents, if any, incorporated by reference in
the Registration Statement and the Prospectus, at the time they
were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and, when read together
and with the other information in the Registration Statement and
the Prospectus, do not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading.
(d) The financial statements of the Company (including all
notes and schedules thereto) included or incorporated by reference
in the Registration Statement and Prospectus present fairly the
financial position, the results of operations, the statements of
cash flows and the statements of shareholders' equity and the other
information purported to be shown therein of the Company at the
respective dates and for the respective periods to which they
apply; and such financial statements and related schedules and
notes have been prepared in conformity with United States generally
accepted accounting principles, consistently applied throughout the
periods involved, and all adjustments necessary for a fair
presentation of the results for such periods have been made. The
summary and selected financial data included in the Prospectus
present fairly the information shown therein as at the respective
dates and for the respective periods specified and the summary and
selected financial data have been presented on a basis consistent
with the financial statements set forth in the Prospectus.
(e) Deloitte & Touche Register accountants, whose report
is filed with the Commission as a part of the Registration
Statement, are and, during the periods covered by their reports,
were, independent public accountants as required by the Securities
Act and the Rules.
(f) The Company and each of the subsidiaries of the
Company identified on Schedule III to this Agreement (the
"Subsidiaries") [entity owned 24% by the Company and 76% by Xxxxxx
del Xxxxx to be included as a "Subsidiary" on Schedule III] is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Other than
the Subsidiaries, the Company does not control, directly or
indirectly, or hold greater than a 5% interest in, any other
corporation or other business organization. The Company and each of
its Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation in
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each jurisdiction in which the nature of the business conducted by
it or location of the assets or properties owned, leased or
licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify would not have a
material adverse effect on the assets or properties, business,
results of operations or financial condition of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect"). The
Company and each of its Subsidiaries has all requisite corporate
power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates, designations,
declarations and permits of and from all governmental or regulatory
bodies or any other person or entity (collectively, the "Permits"),
to own, lease and license its assets and properties and conduct its
business, all of which Permits are valid and in full force and
effect, as described in the Registration Statement and the
Prospectus, except where the lack of such Permits, individually or
in the aggregate, would not have a Material Adverse Effect. The
Company and each of its Subsidiaries has fulfilled and performed in
all material respects all of its material obligations with respect
to such Permits and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights
of the Company or any of its Subsidiaries thereunder. Except as may
be required under the Securities Act and state and foreign blue sky
laws, no other Permits are required to enter into, deliver and
perform this Agreement and to issue and sell the Shares.
(g) The Company and each of its Subsidiaries owns or
possesses adequate and enforceable rights to use all patents,
patent applications, trademarks, trademark applications, trade
names, service marks, logos, copyrights, copyright applications,
licenses, trade secrets, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary for
or used in the conduct of its business. Except as disclosed in the
Registration Statement and the Prospectus, (i) neither the Company
nor any of its Subsidiaries has received any notice of, or is aware
of, any infringement of or conflict with any rights of others with
respect to the Company's use of any Intangibles, and (ii) neither
the Company nor any of its Subsidiaries has given notice of, or is
aware of, any third parties that are infringing or are in conflict
with any rights of the Company or any of its Subsidiaries in any
Intangibles.
(h) The Company and each of its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property described in the
Prospectus as being owned by it. Any real property and buildings
described in the Prospectus as being held under lease by the
Company or any of its Subsidiaries are held by it under valid,
existing and enforceable leases, free and clear of all liens,
encumbrances, claims, security interests and defects, except such
as are described in the Registration Statement and the Prospectus
or would not have a Material Adverse Effect.
(i) There are no litigation or governmental proceedings to
which the Company or any of its Subsidiaries is subject or which is
pending or, to the knowledge of the Company, threatened, against
the Company or any of its Subsidiaries, which, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect, affect the consummation of this Agreement or which
is required to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
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(j) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, (a) there has not been any
material adverse change with regard to the assets or properties,
business, results of operations or financial condition of the
Company or any of its Subsidiaries; (b) neither the Company nor any
of its Subsidiaries has sustained any loss or interference with its
assets, businesses or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree which
would have a Material Adverse Effect; and (c) since the date of the
latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company nor
any of its Subsidiaries has (i) issued any securities (other than
options granted and shares issued pursuant to stock option and
purchase plans described in the Registration Statement and
Prospectus) or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or
obligations incurred in the ordinary course of business, (ii)
entered into any transaction not in the ordinary course of business
or (iii) declared or paid any dividend or made any distribution on
any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any
shares of its stock.
(k) There is no document, contract or other agreement of a
character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required by the
Securities Act or Rules. Each description of a contract, document
or other agreement in the Registration Statement and the Prospectus
accurately reflects in all material respects the terms of the
underlying document, contract or agreement. Each agreement
described in the Registration Statement and Prospectus or filed as
an exhibit to the Registration Statement is in full force and
effect and is valid and enforceable by and against the Company or
one of its Subsidiaries, as the case may be, in accordance with its
terms. Neither the Company nor any Subsidiary, if such Subsidiary
is a party, nor to the Company's knowledge, any other party is in
default in the observance or performance of any term or obligation
to be performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event,
individually or in the aggregate, would have a Material Adverse
Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the
due performance and observance of any term, covenant or condition,
by the Company or any Subsidiary, if such Subsidiary is a party
thereto, of any other agreement or instrument to which the Company
or any Subsidiary is a party or by which the Company, any
Subsidiary or their properties or business may be bound or
affected, which default or event, individually or in the aggregate,
would have a Material Adverse Effect.
(l) Neither the Company nor any of its Subsidiaries is in
violation of any term or provision of any of its organizational
documents or of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such
violation, individually or in the aggregate, would have a Material
Adverse Effect.
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(m) Neither the execution, delivery and performance of
this Agreement nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance
and sale by the Company of the Shares) will give rise to a right to
terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of,
or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company or any Subsidiary pursuant to the terms of, any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any Subsidiary is a party or by which
either the Company or any Subsidiary or any of their properties or
businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the
Company or any Subsidiary, or violate any provision of the
organizational documents of the Company or any Subsidiary, except
for such consents or waivers which have already been obtained and
are in full force and effect.
(n) The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus (except for subsequent issuances pursuant to stock
option and purchase plans described in the Registration Statement
and Prospectus). The certificates evidencing the Shares are in due
and proper legal form and have been duly authorized for issuance by
the Company. All of the issued and outstanding Common Shares have
been duly and validly issued and are fully paid and nonassessable.
There are no statutory preemptive or other similar rights to
subscribe for or to purchase or acquire any shares of capital stock
of the Company or its Subsidiaries or any such rights pursuant to
its organizational documents or any agreement or instrument to or
by which the Company or any of its Subsidiaries is a party or is
bound. The Shares, when issued and sold pursuant to this Agreement,
will be duly and validly issued, fully paid and nonassessable and
none of them will be issued in violation of any preemptive rights,
co-sale rights, rights of first refusal or other similar rights to
subscribe for or to purchase or acquire any securities of the
Company, or any restriction upon the voting or transfer of any
securities of the Company, pursuant to the Company's organizational
documents or any agreement or other instrument to which the Company
or any of its Subsidiaries is a party or is bound. Except as
disclosed in the Registration Statement and the Prospectus, there
is no outstanding option, warrant or other right calling for the
issuance of, and there is no commitment, plan or arrangement to
issue, any shares of capital stock of the Company or any of its
Subsidiaries or any security convertible into, or exercisable or
exchangeable for, any such capital stock. The Common Shares conform
in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus. All
outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in the Prospectus, all
outstanding shares of capital stock of each Subsidiary are owned
directly by the Company or by another wholly-owned subsidiary of
the Company, free and clear of any security interests, liens,
encumbrances, equities or claims.
(o) No holder of any security of the Company except the
Selling Shareholder has the right to have any security owned by
such holder included in the Registration
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Statement. No holder of any security of the Company has the right
to demand registration of any security owned by such holder during
the period ending 180 days after the date of this Agreement. The
Selling Shareholder and each director and officer of the Company
[and each other affiliate that owns more than a de minimis number
of Common Shares, if any,] has delivered to the Representatives his
or its enforceable written lock-up agreement in the form attached
to this Agreement ("Lock-Up Agreement").
(p) All necessary action has been duly and validly taken
by the Company to authorize the execution, delivery and performance
of this Agreement and the issuance and sale of the Shares by the
Company. This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes and will
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(q) Neither the Company nor any of its Subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company,
is any such dispute threatened, which dispute could reasonably be
expected to have a Material Adverse Effect. The Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers or contractors or of
any other third party with which the Company has a contractual or
other relationship which could reasonably be expected to have a
Material Adverse Effect. The Company is not aware of any threatened
or pending litigation between the Company or its Subsidiaries and
any of its executive officers which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect and has no
reason to believe that such officers will not remain in the
employment of the Company.
(r) No transaction has occurred between or among the
Company and any of its officers or directors or shareholders or any
affiliate or affiliates of any such officer or director or
shareholder that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) Neither the Company nor any of its Subsidiaries has
taken, nor will it take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or
result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the Common Shares to facilitate the sale or resale of any
of the Shares.
(t) The Company and each of its Subsidiaries has filed all
Federal, state, local and foreign tax returns which are required to
be filed through the date hereof, or has received extensions
thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same are material
and have become due. There are no tax audits or investigations
pending, which if adversely determined would have a Material
Adverse Effect; nor are there any material proposed additional tax
assessments against the Company or any of its Subsidiaries.
(u) The Shares have been duly authorized for quotation on
the Nasdaq National Market, subject to official Notice of Issuance.
A registration statement has
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been filed on Form 8-A pursuant to Section 12 of the Exchange Act,
which registration statement complies in all material respects with
the Exchange Act.
(v) The Company has complied with all of the requirements
and filed any required forms as specified in Florida Statutes
Section 517.075.
(w) The books, records and accounts of the Company and its
Subsidiaries accurately and fairly reflect, in reasonable detail,
the transactions in and dispositions of the assets of the Company
and its Subsidiaries and the results of operations of the Company
and its Subsidiaries. The Company and each of its Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation
of financial statements in accordance with United States generally
accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(x) The Company and its Subsidiaries and their respective
directors and officers 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 or propose to engage after giving effect to the
transactions described in the Prospectus; the Company and each of
its Subsidiaries is in compliance with the terms of such policies
and instruments in all material respects; and neither the Company
nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect. Neither the Company
nor any Subsidiary has been denied any insurance coverage which it
has sought or for which it has applied.
(y) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement
and the consummation of the transactions herein contemplated
required to be obtained or performed by the Company (except such
additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or may be necessary to
qualify the Shares for public offering by the Underwriters under
the state securities or blue sky laws) has been obtained or made
and is in full force and effect.
(z) There are no affiliations with the NASD among the
Company's officers, directors or, to the best of the knowledge of
the Company, any five percent or greater shareholder of the
Company.
(aa) (i) The Company and each of its Subsidiaries is in
compliance in all material respects with all rules, laws and
regulation relating to the use, treatment,
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storage and disposal of toxic substances and protection of health
or the environment ("Environmental Laws") which are applicable to
its business; (ii) neither the Company nor any of its Subsidiaries
has received any notice from any governmental authority or third
party of an asserted claim under Environmental Laws; (iii) each of
the Company and its Subsidiaries has received all permits, licenses
or other approvals required of it under applicable Environmental
Laws to conduct its business and is in compliance with all terms
and conditions of any such permit, license or approval; (iv) to the
Company's knowledge, no facts currently exist that will require the
Company or its Subsidiaries to make future material capital
expenditures to comply with Environmental Laws; and (v) no property
which is or has been owned, leased or occupied by the Company or
any of its Subsidiaries has been designated as a Superfund site
pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et.
seq. ("CERCLA 1980") or otherwise designated as a contaminated site
under applicable federal, state, local or foreign law. Neither the
Company nor any of its Subsidiaries has been named as a
"potentially responsible party" under CERCLA 1980.
(bb) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which the Company identifies and
evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect.
(cc) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of proceeds
thereof as described in the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act").
(dd) None of the Company, its Subsidiaries or any other
person associated with or acting on behalf of the Company or its
Subsidiaries including, without limitation, any director, officer,
agent or employee of the Company or its Subsidiaries has, directly
or indirectly, while acting on behalf of the Company or its
Subsidiaries, (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds;
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other unlawful payment.
(ee) The business and operations of the Company and its
Subsidiaries were not adversely affected by the "Year 2000 Problem"
(that is, the computer hardware and software applications used by
the Company and its Subsidiaries continue to function at least as
effectively as they did for dates or time periods occurring prior
to January 1,
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2000) or by any failure to address the Year 2000 Problem by any
material supplier, vendor, customer or other third party.
(ff) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated
by this Agreement other than the underwriting discounts and
commissions contemplated hereby.
(gg) The Company meets all the conditions necessary for
the use of the Registration Statement in the form of a Form F-3
registration statement as set forth in the Rules.
(hh) Neither the Company nor any of its Subsidiaries
currently is, and the Company will use its best efforts so that
neither of them will become, a personal holding company within the
meaning of Section 542 of the Internal Revenue Code of 1986, as
amended (the "Code") (a "PHC"), for its current taxable year.
(ii) The Company is not and upon the consummation of the
transactions described hereby and the application of the proceeds
as described in the Registration Statement under the caption "Use
of Proceeds" will not become a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1297 of the Code and will
use its best efforts to continue to manage its business so as to
avoid PFIC status to the extent consistent with its other business
goals. If the Company becomes a PFIC, it will comply with all the
requirements of the Code so that its shareholders will be able to
elect to treat the Company as a "qualified electing fund" within
the meaning of section 1295 of the Code.
5. Representations and Warranties of the Selling
Shareholder. The Selling Shareholder hereby represents and warrants to each
Underwriter as follows:
(a) The Selling Shareholder has delivered an irrevocable
exercise notice with respect to the Warrant to the Company, and has
delivered or caused to be delivered to Citibank, N.A. (the
"Custodian") a blank stock power with respect to the Shares to be
sold by the Selling Shareholder, duly executed and with a signature
appropriately guaranteed, and a certificate representing such
Shares, to be held in custody by the Custodian for delivery
pursuant to the provisions of this Agreement and an agreement dated
March 13, 2000 between the Custodian and the Selling Shareholder
(the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable
power of attorney (the "Power of Attorney") to Xxxxxx X. del Xxxxx
and Rinse de Jong, on behalf of the Selling Shareholder, to execute
and deliver this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby
and to deliver the Shares to be sold by the Selling Shareholder
pursuant hereto.
(c) Each of this Agreement, the Custody Agreement, the
Power of Attorney and the Lock-Up Agreement has been duly
authorized, executed and delivered by or on behalf of the Selling
Shareholder and, assuming due authorization,
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execution and delivery by the other parties hereto and thereto,
constitutes the valid and legally binding agreement of the Selling
Shareholder, enforceable against the Selling Shareholder in
accordance with its terms.
(d) The execution and delivery by the Selling Shareholder
of this Agreement and the performance by the Selling Shareholder of
its obligations under this Agreement, does not and will not (i)
violate or contravene any applicable law, statute, regulation or
filing or any agreement or other instrument binding upon the
Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Shareholder; (ii) require any consent, approval,
authorization or order of or registration or filing with any court
or governmental agency or body having jurisdiction over it, except
such as may be required by the blue sky laws of the various states
in connection with the offer and sale of the Shares which have been
or will be effected in accordance with this Agreement; or (iii)
result in the creation or imposition of any lien, charge or
encumbrance upon the Shares to be sold by the Selling Shareholder
pursuant to the terms of any agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder
may be bound or to which any of the property or assets of the
Selling Shareholder is subject.
(e) The Selling Shareholder is the holder of and has the
right to exercise the Warrant. On the Firm Shares Closing Date, the
Selling Shareholder will have valid and marketable title to the
Shares to be sold by the Selling Shareholder free and clear of any
lien, claim, security interest or other encumbrance, including,
without limitation, any restriction on transfer.
(f) On the Firm Shares Closing Date, the Selling
Shareholder will have full legal right, power and authorization,
and any approval required by law, to sell, assign, transfer and
deliver the Shares to be sold by the Selling Shareholder in the
manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold
by the Selling Shareholder pursuant to this Agreement, the several
Underwriters will receive valid and marketable title to such Shares
free and clear of any lien, claim, security interest or other
encumbrance.
(h) The responses set forth in the questionnaire completed
by the Selling Shareholder at the Company's request in connection
with this offering, the information regarding the Selling
Shareholder in the Prospectus in the Section entitled "Principal
and Selling Shareholders," and any other information relating to
the Selling Shareholder furnished in writing by the Selling
Shareholder expressly for use in the Registration Statement and
Prospectus (collectively, the "Selling Shareholder Information")
is, and on each Closing Date will be, true, correct, and complete,
and does not, and on each Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make such information not misleading.
-13-
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(i) The principal reason for the participation by the
Selling Shareholder in the proposed public offering is to permit
diversification of the Selling Shareholder's investments;
(j) The Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(k) The representations and warranties of the Selling
Shareholder in the Power of Attorney are, and on each Closing Date
will be, true and correct.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has
become effective shall have been received by the Representatives
and the Prospectus shall have been timely filed with the Commission
in accordance with Section 7(a) of this Agreement.
(b) No order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus shall have been or shall
be in effect and no order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for
such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part
of the Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Commission and the Representatives.
(c) The representations and warranties of the Company and
the Selling Shareholder contained in this Agreement and in the
certificate delivered pursuant to Section 6(d) shall be true and
correct when made and on and as of each Closing Date as if made on
such date. The Company and the Selling Shareholder shall have
performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by them at or before such Closing Date.
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(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of the chief executive or chief operating
officer and the chief financial officer or chief accounting officer
of the Company to the effect that (i) the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct on
and as of such Closing Date with the same effect as if made on such
Closing Date and the Company has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by it at or prior to such
Closing Date, (ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and to the best of their
knowledge, no proceedings for that purpose have been instituted or
are pending under the Securities Act, and (iii) since the date of
the Registration Statement and the Prospectus, there has been no
event or occurrence which has had a Material Adverse Effect.
(e) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of or on behalf of the Selling
Shareholder, to the effect that the Selling Shareholder has
carefully examined the Registration Statement, the Prospectus and
this Agreement and that the representations and warranties of the
Selling Shareholder in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such
Closing Date and the Selling Shareholder has performed all
covenants and agreements and satisfied all conditions contained in
this Agreement required to be performed or satisfied by it at or
prior to such Closing Date.
(f) The Representatives shall have received, at the time
this Agreement is executed and on each Closing Date, a signed
letter from Deloite & Touche Registeraccountants addressed to the
Representatives and dated, respectively, the date of this Agreement
and each such Closing Date, in form and substance reasonably
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act
and the Rules, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement
and the Prospectus and reported on by them comply as to
form in all material respects with the applicable
accounting requirements of the Securities Act and the
Rules;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus
under the headings "Summary Consolidated Financial
Information," "Selected Consolidated Financial Data,"
"Capitalization" and "Management's Discussion and Analysis
of Financial Condition and Results of Operations,"
carrying out certain procedures (but not an examination in
accordance with generally accepted auditing standards)
-15-
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which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter, a
reading of the minutes of the meetings of the shareholders
and directors of the Company, and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company as to
transactions and events subsequent to the date of the
latest audited financial statements, except as disclosed
in the Registration Statement and the Prospectus, nothing
came to their attention which caused them to believe that:
(A) the amounts in "Summary Consolidated
Financial Information," "Selected Consolidated
Financial Data," "Capitalization" and
"Management's Discussion and Analysis of Financial
Condition and Results of Operations," included in
the Registration Statement and the Prospectus, do
not agree with the corresponding amounts in the
audited financial statements from which such
amounts were derived; or
(B) with respect to the Company, there
were, at a specified date not more than three
business days prior to the date of the letter, any
increases in the current liabilities and long-term
liabilities of the Company or any decreases in net
income or in working capital or the shareholders'
equity in the Company, as compared with the
amounts shown on the Company's audited balance
sheet for the fiscal year ended December 31, 1999
included in the Registration Statement;
(iii) they have performed certain other procedures
as may be permitted under generally acceptable auditing
standards as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the Registration Statement and the Prospectus and
reasonably specified by the Representatives agrees with
the accounting records of the Company; and
(iv) based upon the procedures set forth in
clauses (ii) and (iii) above and a reading of the amounts
included in the Registration Statement under the headings
"Summary Consolidated Financial Information" and "Selected
Consolidated Financial Data" included in the Registration
Statement and Prospectus and a reading of the financial
statements from which certain of such data were derived,
nothing has come to their attention that gives them reason
to believe that the "Summary Consolidated Financial
Information" and "Selected Consolidated Financial Data"
included in the Registration Statement and Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act
and the Rules or that the information set forth therein is
not fairly stated in relation to the financial statements
included in the Registration Statement or Prospectus from
which certain of such data were derived or is not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with
-16-
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that of the audited financial statements included in the
Registration Statement and Prospectus.
References to the Registration Statement and the
Prospectus in this paragraph (f) are to such documents as amended
and supplemented at the date of the letter.
(g) The Representatives shall have received on each
Closing Date from Stibbe Simont Xxxxxxx Duhot, counsel for the
Company, an opinion, addressed to the Representatives and dated
such Closing Date, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company and each of the subsidiaries of
the Company identified on Schedule IV attached hereto (the
"Selected Subsidiaries") [to include subsidiaries
organized in the Netherlands and subsidiaries organized in
any other jurisdiction on which Dutch counsel is qualified
to opine - Netherlands Antilles? Belgium? Finland? Other?]
has each been duly organized and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation identified on Schedule
IV. No proceeding has been instituted by any governmental
authority for the dissolution of the Company or any of the
Selected Subsidiaries. To the best of such counsel's
knowledge, except for the Selected Subsidiaries and the
other Subsidiaries listed on Schedule III attached hereto,
the Company has no subsidiaries and does not control,
directly or indirectly, or have greater than a ___% equity
interest in, any corporation, partnership, joint venture,
association or other business organization. The Company
and each of the Selected Subsidiaries is each duly
qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or
the nature of its businesses makes such qualification
necessary, except for such jurisdictions where the failure
to so qualify, individually or in the aggregate, would not
have a Material Adverse Effect.
(ii) The Company and each of the Selected
Subsidiaries each has all requisite corporate power and
authority to own, lease and license its assets and
properties and conduct its business as now being conducted
and as described in the Registration Statement and the
Prospectus. The Company has all requisite corporate power
and authority to enter into, deliver and perform this
Agreement and to issue and sell the Shares in accordance
with and upon the terms and conditions set forth herein
and in the Prospectus.
(iii) The Company has authorized and issued
capital stock as set forth in the Registration Statement
and the Prospectus under the caption "Capitalization;" the
certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by
the Company; all of the outstanding Common Shares of the
Company have been duly and validly authorized and issued
and are fully paid and nonassessable and none of them
-17-
18
was issued in violation of any preemptive or other similar
right. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, outstanding,
fully paid and nonassessable and none of them will have
been issued in violation of any preemptive or other
similar right. To the best of such counsel's knowledge,
except as disclosed in the Registration Statement and the
Prospectus, there are no preemptive or other rights to
subscribe for or to purchase or any restriction upon the
voting or transfer of the Common Shares or any other
securities of the Company pursuant to the Company's
Articles of Association or other governing documents or
any agreements or other instruments to which the Company
is a party or by which it is bound. To the best of such
counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or arrangement to
issue, any share of stock of the Company or any security
convertible into, exercisable for, or exchangeable for
stock of the Company. There are no, and neither the filing
of the Registration Statement nor the offering or sale of
the Shares as contemplated by this Agreement gives rise to
any, rights for or relating to the registration of the
Common Shares or other securities of the Company. The
Common Shares and the Shares conform in all material
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(iv) Each of the Lock-Up Agreements executed by
the Company's shareholders, directors, executive officers
and employees has been duly and validly delivered by such
persons and constitutes the legal, valid and binding
obligation of each such person enforceable against each
such person in accordance with its terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles.
(v) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement and
the issuance and sale of the Shares. Upon issuance of the
Shares and payment therefor in accordance with the terms
of this Agreement, the Underwriters will receive good and
valid title thereto, free and clear of any lien, charge,
claim, encumbrance, security interest, restriction on
transfer, shareholders' agreement, voting trust and other
defect of title of any nature whatsoever. This Agreement
has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid
and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles. The Registration Statement and the
Prospectus and their respective filings with the
Commission and, to the extent required, with other
appropriate authorities, have been duly authorized by and
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on behalf of the Company and the Registration Statement
has been duly executed pursuant to such authorization by
and on behalf of the Company.
(vi) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or an event which with notice or lapse of time,
or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or
imposition of any lien, charge, claim, security interest
or encumbrance upon any properties or assets of the
Company or any of its Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, note or other
agreement or instrument of which such counsel is aware and
to which the Company or any of its Subsidiaries is a party
or by which any of them or any of their respective
properties or assets is bound, or any franchise, license,
permit, judgment, decree, order, law, statute, rule or
regulation of which such counsel is aware or violate any
provision of the Articles of Association or other
organizational documents of the Company.
(vii) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a
default, in the due performance and observance by the
Company or any of the Selected Subsidiaries of any term,
covenant or condition of any indenture, mortgage, deed of
trust, note or any other agreement or instrument to which
the Company or any of the Selected Subsidiaries is a party
or by which any of them or any of their respective assets
or properties may be bound or affected, where the
consequences of such default, individually or in the
aggregate, could have a Material Adverse Effect.
(viii) The Company is not in violation of any term
or provision of its Articles of Association or other
organizational documents or of any franchise, license,
permit, certificate, consent, approval, authorization,
judgment, decree, order, law, statute, rule or regulation,
where the consequences of such violation, individually or
in the aggregate, could have a Material Adverse Effect.
(ix) No consent, approval, authorization or order
of, or filing, qualification, registration, permit or
license of or with, any court, governmental agency or
regulatory body of the Netherlands is required for the
execution, delivery or performance of this Agreement by
the Company or the consummation of the transactions
contemplated hereby or thereby.
(x) To the best of such counsel's knowledge, there
is no litigation or governmental or other proceeding or
investigation, before any court in the Netherlands or
before or by any public body or board in the Netherlands
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pending or threatened against, or involving the assets,
properties or businesses of, the Company which could have
a Material Adverse Effect.
(xi) The statements in the Prospectus, insofar as
such statements refer to the Company's Articles of
Association or other organizational documents, or to
agreements, arrangements or instruments to which the
Company or any of its Selected Subsidiaries is a party,
are accurately described in all material respects, and
insofar as such statements constitute or refer to
statements of Netherlands law or legal conclusions under
Netherlands law, have been reviewed by such counsel and
are accurate in all material respects. The statements in
the Registration Statement and the Prospectus describing
Netherlands laws and regulations are fair summaries of the
information set forth therein and are accurate in all
material respects. Specifically, and without limiting the
generality of the foregoing, the statements in the
Prospectus under the captions "Capitalization,"
"Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and
Capital Resources," "Business - Research and Development,"
"Business -- Facilities," "Management," "Related Party
Transactions," "Principal and Selling Stockholders,"
"Description of Shares, Share Capital and Corporate
Structure," "Taxation" and "Enforceability of Civil
Liabilities," [add other sections if appropriate] insofar
as such statements constitute a summary of documents
referred to therein or matters of Netherlands law, are
fair summaries in all material respects and accurately
present the information called for with respect to such
documents and matters. Accurate copies of all contracts
and other documents required to be filed as exhibits to,
or described in, the Registration Statement have been so
filed with the Commission, or are fairly described in the
Registration Statement, as the case may be.
(xii) The capital stock of the Company conforms in
all material respects to the description thereof contained
in the Prospectus under the caption "Description of
Shares, Share Capital and Corporate Structure."
(xiii) Under exchange control regulations
currently in effect there are no authorizations or
consents required from any governmental or regulatory body
in the Netherlands to give nonresidents of the Netherlands
the rights to freely repatriate to non-Netherlands
currency all amounts received with respect to Common
Shares that were purchased with non-Netherlands currency,
whether as a dividend, as a liquidating distribution or as
proceeds from the sale of such shares, subject to
applicable tax withholding.
(xiv) (A) The Company and each of the Selected
Subsidiaries owns, possesses or has obtained all
Netherlands governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to
operate its properties and to conduct its business as
presently conducted, except where the failure to so own,
possess or obtain would not have a Material Adverse
Effect, and (B) to the knowledge of such counsel, the
Company has not received any notice of
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proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders,
approvals or authorizations.
(xv) Assuming that none of the Underwriters is
otherwise subject to taxation in the Netherlands, neither
the issuance and sale to the Underwriters of the Shares to
be sold by the Company hereunder nor the execution,
delivery or performance of this Agreement is subject to
any tax imposed by the Netherlands or any political
subdivision thereof. Neither the Underwriters nor any
other holder of the Shares will be deemed resident in or
otherwise subject to taxation in the Netherlands solely by
reason of the holding of the Shares or the execution,
delivery or performance of this Agreement.
(xvi) As provided in Section 12 of this Agreement,
the Company has duly and irrevocably appointed
__________________________________ as its agent to receive
service of process in any action against it in any federal
or state court sitting in the county of New York arising
out of or in connection with this offering.
(xvii) Under the laws of the Netherlands, the
submission by the Company to the jurisdiction of any
federal or state court sitting in the county of New York
and the designation of the law of the State of New York to
apply to this Agreement is binding upon the Company and,
if properly brought to the attention of the court or
administrative body in accordance with the laws of the
Netherlands, would be enforceable in any judicial or
administrative proceeding in the Netherlands. The
Netherlands will enforce a judgment of a New York court,
subject to such exceptions as may be set forth in the
opinion.
To the extent deemed advisable by such
counsel, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public
officials. Copies of such certificates shall be furnished to the
Representatives and to counsel for the Underwriters.
In addition, such counsel shall state that
such counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
Representatives and representatives of the independent certified
public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified
in the foregoing opinions), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel
to believe that the Registration Statement (except for the
financial statements and notes and schedules thereto and other
financial data, as to which such counsel need make no such
statement) at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or
supplemented (except for the financial statements and notes and
schedules thereto and other financial data, as to which such
counsel need make no
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such statement), on the date thereof or on the Closing Date
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(h) The Representatives shall have received on each
Closing Date from Xxxxxxx & Xxxxx LLP, United States counsel for
the Company, an opinion, addressed to the Representatives and dated
such Closing Date, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) ASM America Inc. ("ASM America") and ASM
Pacific Assembly Products Inc. ("ASM Pacific") has each
been duly organized and is validly existing as a
corporation in good standing under the laws of the State
of Delaware. No proceeding has been instituted by any
governmental authority for the dissolution of ASM America
or ASM Pacific. To the best of such counsel's knowledge,
except for ASM America and ASM Pacific, the Company has no
subsidiaries that are organized in the United States and
does not control, directly or indirectly, or have greater
than a ___% equity interest in, any corporation,
partnership, joint venture, association or other business
organization that is organized in the United States. ASM
America and ASM Pacific is each duly qualified and in good
standing as a foreign corporation in each jurisdiction in
which the character or location of its assets or
properties (owned, leased or licensed) or the nature of
its businesses makes such qualification necessary, except
for such jurisdictions where the failure to so qualify,
individually or in the aggregate, would not have a
Material Adverse Effect.
(ii) ASM America and ASM Pacific each has all
requisite corporate power and authority to own, lease and
license its assets and properties and conduct its business
as now being conducted and as described in the
Registration Statement and the Prospectus.
(iii) The issued and outstanding shares of capital
stock of ASM America and ASM Pacific have been duly
authorized and validly issued, are fully paid and
nonassessable and are free and clear of any perfected
security interest or, to the knowledge of such counsel,
any other security interests, liens, encumbrances,
equities or claims. All of the issued and outstanding
shares of capital stock of ASM America are owned of record
by the Company. All of the issued and outstanding shares
of capital stock of ASM Pacific are owned of record by ASM
America. To the best of such counsel's knowledge, there is
no outstanding option, warrant or other right calling for
the issuance of, and no commitment, plan or arrangement to
issue, any share of stock of ASM America or ASM Pacific or
any security convertible into, exercisable for, or
exchangeable for stock of ASM America or ASM Pacific.
(iv) Each of the Lock-Up Agreements executed by
the Company's shareholders, directors, executive officers
and employees has been duly and
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23
validly delivered by such persons and constitutes the
legal, valid and binding obligation of each such person
enforceable against each such person in accordance with
its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by
general equitable principles.
(v) Assuming the due authorization, execution and
delivery of this Agreement by the Underwriters and the
Company, this Agreement constitutes the legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles.
(vi) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or an event which with notice or lapse of time,
or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or
imposition of any lien, charge, claim, security interest
or encumbrance upon any properties or assets of the
Company or any of its Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, note or other
agreement or instrument of which such counsel is aware and
to which the Company or any of its Subsidiaries is a party
or by which any of them or any of their respective
properties or assets is bound, or any franchise, license,
permit, judgment, decree, order, law, statute, rule or
regulation of which such counsel is aware or violate any
provision of the Certificate of Incorporation or By-laws
of ASM America or ASM Pacific.
(vii) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a
default, in the due performance and observance by ASM
America or ASM Pacific of any term, covenant or condition
of any indenture, mortgage, deed of trust, note or any
other agreement or instrument to which either of them is a
party or by which either of them or any of their
respective assets or properties may be bound or affected,
where the consequences of such default, individually or in
the aggregate, could have a Material Adverse Effect.
(viii) Neither ASM America nor ASM Pacific is in
violation of any term or provision of its Certificate of
Incorporation or By-laws or of any franchise, license,
permit, certificate, consent, approval, authorization,
judgment, decree, order, law, statute, rule or regulation,
where the
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24
consequences of such violation, individually or in the
aggregate, could have a Material Adverse Effect.
(ix) No consent, approval, authorization or order
of, or filing, qualification, registration, permit or
license of or with, any court, governmental agency or
regulatory body of the United States, or, to our
knowledge, any other jurisdiction, is required for the
execution, delivery or performance of this Agreement by
the Company or the consummation of the transactions
contemplated hereby or thereby, except such as have been
obtained under the Securities Act and such as may be
required under state or foreign securities or "blue sky"
laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(x) To the best of such counsel's knowledge, there
is no litigation or governmental or other proceeding or
investigation, before any court in the United States or
before or by any public body or board in the United States
pending or threatened against, or involving the assets,
properties or businesses of, the Company, ASM America or
ASM Pacific which could have a Material Adverse Effect.
(xi) The statements in the Prospectus under the
captions "Underwriting" and "Taxation," [add other
sections if appropriate] insofar as such statements
constitute or refer to statements of U.S. federal or state
law or legal conclusions under U.S. federal or state law,
fairly present the information disclosed therein in all
material respects.
(xii) To the best of such counsel's knowledge, all
contracts and other documents required to be filed as
exhibits to the Registration Statement have been so filed
with the Commission.
(xiii) (A) ASM America and ASM Pacific each owns,
possesses or has obtained all governmental licenses,
permits, certificates, consents, orders, approvals and
other authorizations necessary to own or lease, as the
case may be, and to operate its properties and to conduct
its business as presently conducted, except where the
failure to so own, possess or obtain would not have a
Material Adverse Effect, and (B) to the knowledge of such
counsel, none of the Company, ASM America or ASM Pacific
has received any notice of proceedings relating to
revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or
authorizations.
(xiv) As provided in Section 12 of this Agreement,
the Company has duly and irrevocably appointed
__________________________________ as its agent to receive
service of process in any action against it in any federal
or state court sitting in the county of New York arising
out of or in connection with this offering.
(xv) The Registration Statement, all Preliminary
Prospectuses and the Prospectus and each amendment or
supplement thereto (except for the
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25
financial statements and notes and schedules thereto and
other financial data, as to which such counsel need
express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and
the Rules. The Company and the transactions contemplated
by this Agreement satisfy the eligibility requirements for
the use of Form F-3.
(xvi) The Registration Statement is effective
under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated. Any
required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act
has been made in the manner and within the time period
required by such Rule 424(b).
(xvii) The Shares have been approved for listing
on the Nasdaq National Market.
(xviii) The Company is not an "investment company"
or an entity controlled by an "investment company" as such
terms are defined in the Investment Company Act of 1940,
as amended.
(xix) We have reviewed the opinions that you have
received in connection with this Agreement from various
foreign firms as to certain matters under the laws of the
Netherlands, Hong Kong, Japan, the Netherlands Antilles,
Finland, Belgium, Germany, Korea, Singapore [France, the
United Kingdom, Taiwan, Cayman Islands, Channel Islands,
Malaysia, People's Republic of China, and other
countries]. Based on the professional reputations of such
firms, we believe that such firms are competent to render
the opinions that they have given to you. Such opinions
appear to be satisfactory in form and scope. We are not
aware of any reason why you should not rely on such
opinions, and in our opinion you are justified in relying
on such opinions as to the matters set forth therein.
To the extent deemed advisable by such
counsel, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company, ASM America or
ASM Pacific and public officials. Copies of such certificates shall
be furnished to the Representatives and to counsel for the
Underwriters.
In addition, such counsel shall state that
such counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
Representatives and representatives of the independent certified
public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus (except as specified
in the foregoing opinions), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead
-25-
26
such counsel to believe that the Registration Statement (except for
the financial statements and notes and schedules thereto and other
financial data, as to which such counsel need make no such
statement) at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or
supplemented (except for the financial statements and notes and
schedules thereto and other financial data, as to which such
counsel need make no such statement), on the date thereof or on the
Closing Date contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(i) The Representatives shall have received on each
Closing Date from local counsel for the Company satisfactory to
counsel for the Underwriters in each of Hong Kong, Japan, the
Netherlands Antilles, Finland, Belgium, Germany, Korea, Singapore
[France, the United Kingdom, Taiwan, Cayman Islands, Channel
Islands, Malaysia, People's Republic of China, and other countries]
[NEED TO DISCUSS WHICH SUBSIDIARIES ARE MATERIAL], an opinion,
addressed to the Representatives and dated such Closing Date, in
form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) Each Subsidiary organized under the laws of
such jurisdiction (a "Local Subsidiary") been duly
organized and is validly existing as a corporation in good
standing under the laws of such jurisdiction. No
proceeding has been instituted by any governmental
authority for the dissolution of any Local Subsidiary. To
the best of such counsel's knowledge, except for the Local
Subsidiaries identified in such opinion, the Company has
no subsidiaries that are organized in such jurisdiction
and does not control, directly or indirectly, or have
greater than a ___% equity interest in, any corporation,
partnership, joint venture, association or other business
organization that is organized in such jurisdiction. Each
Local Subsidiary is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned,
leased or licensed) or the nature of its businesses makes
such qualification necessary, except for such
jurisdictions where the failure to so qualify,
individually or in the aggregate, would not have a
Material Adverse Effect.
(ii) Each Local Subsidiary has all requisite
corporate power and authority to own, lease and license
its assets and properties and conduct its business as now
being conducted and as described in the Registration
Statement and the Prospectus.
(iii) The issued and outstanding shares of capital
stock of each Local Subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable and
are free and clear of any perfected security interest or,
to the knowledge of such counsel, any other security
interests, liens, encumbrances,
-26-
27
equities or claims. All of the issued and outstanding
shares of capital stock of each Local Subsidiary are owned
of record by the Company or a Subsidiary, in either case
as identified in the opinion, subject to any exceptions
set forth in the opinion. To the best of such counsel's
knowledge, there is no outstanding option, warrant or
other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of
stock of any Local Subsidiary or any security convertible
into, exercisable for, or exchangeable for stock of any
Local Subsidiary.
(iv) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or an event which with notice or lapse of time,
or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or
imposition of any lien, charge, claim, security interest
or encumbrance upon any properties or assets of any Local
Subsidiary pursuant to the terms of, any indenture,
mortgage, deed of trust, note or other agreement or
instrument of which such counsel is aware and to which any
Local Subsidiary is a party or by which any Local
Subsidiary or any of the properties or assets of any Local
Subsidiary is bound, or any franchise, license, permit,
judgment, decree, order, law, statute, rule or regulation
of which such counsel is aware or violate any provision of
the Certificate of Incorporation or By-laws of any Local
Subsidiary.
(v) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a
default, in the due performance and observance by any
Local Subsidiary of any term, covenant or condition of any
indenture, mortgage, deed of trust, note or any other
agreement or instrument to which it is a party or by which
it or any of its assets or properties may be bound or
affected, where the consequences of such default,
individually or in the aggregate, could have a Material
Adverse Effect.
(vi) No Local Subsidiary is in violation of any
term or provision of its organizational documents or of
any franchise, license, permit, certificate, consent,
approval, authorization, judgment, decree, order, law,
statute, rule or regulation, where the consequences of
such violation, individually or in the aggregate, could
have a Material Adverse Effect.
(vii) To the best of such counsel's knowledge,
there is no litigation or governmental or other proceeding
or investigation, before any court in such jurisdiction or
before or by any public body or board such jurisdiction
pending or threatened against, or involving the assets,
properties or businesses of, the Company or any Local
Subsidiary which could have a Material Adverse Effect.
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28
(viii) (A) Each Local Subsidiary owns, possesses
or has obtained all governmental licenses, permits,
certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may
be, and to operate its properties and to conduct its
business as presently conducted, except where the failure
to so own, possess or obtain would not have a Material
Adverse Effect, and (B) to the knowledge of such counsel,
neither the Company nor any Local Subsidiary has received
any notice of proceedings relating to revocation or
modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(ix) There are no exchange control regulations of
this jurisdiction that would limit the ability of a
shareholder to convert dividend payments made by any Local
Subsidiary into other currencies which are freely
transferable out of this jurisdiction.
(x) There is no tax, duty, levy, impost,
deduction, charge or withholding imposed or, to our
knowledge, pending or proposed, by this jurisdiction or
any political subdivision thereof or taxing authority
therein or any federation or organization or similar
entity of which it is a member either on or by virtue of
any payment of dividends or distributions on capital stock
by any Local Subsidiary; and neither the holders of the
Shares nor the Underwriters will be deemed resident,
domiciled, carrying on business or subject to taxation in
this jurisdiction solely by reason of the holding of
Shares or the direct or indirect receipt of any dividends
or distributions on capital stock from any Local
Subsidiary.
(xi) For the opinion of Hong Kong counsel only:
The statements in the Prospectus under the captions "Risk
Factors -- ____________________ _________________" and
"_______________________________," insofar as such
statements constitute or refer to statements of Hong Kong
law or legal conclusions under Hong Kong law, fairly
present the information disclosed therein in all material
respects. There are no circumstances in which the approval
of more than a majority of the shareholders of ASM Pacific
Technology Ltd. ("ASMPT") would be required to approve the
declaration and payment of dividends on ordinary shares by
ASMPT.
To the extent deemed advisable by such counsel,
such counsel may rely as to matters of fact on certificates of
responsible officers of the Local Subsidiaries and public
officials. Copies of such certificates shall be furnished to the
Representatives and to counsel for the Underwriters.
In addition, such counsel shall state that it
has reviewed the Registration Statement and the Prospectus and
that, 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
Prospectus (except as specified in the foregoing opinions), no
facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement (except for the
financial statements and notes and schedules thereto and other
financial data, as to which such counsel need make no such
statement) at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended or
supplemented (except for the financial statements and notes and
schedules thereto and other financial
- 28 -
29
data, as to which such counsel need make no such statement), on the
date thereof or on the Closing Date contained any untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) The Representatives shall have received on each
Closing Date from Xxxxxx Godward LLP, counsel for the Selling
Shareholder, an opinion, addressed to the Representatives and dated
such Closing Date, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) Each of this Agreement, the Custody
Agreement, the Power of Attorney and the Lock-Up Agreement has
been duly and validly authorized, executed and delivered by or
on behalf of the Selling Shareholder.
(ii) This Agreement, the Custody Agreement,
the Power of Attorney and the Lock-Up Agreement each
constitutes the legal, valid and binding obligation of the
Selling Shareholder enforceable against the Selling
Shareholder in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles; the Selling Shareholder has
full legal right and authority to enter into this Agreement
and to exercise the Warrant; and following the issuance by the
Company of the Common Shares issuable to the Selling
Shareholder upon exercise of the Warrant, the Selling
Shareholder will have full legal right and authority to sell,
transfer and deliver, in the manner provided in this
Agreement, the Shares to be sold by the Selling Shareholder
hereunder.
(iii) The transfer and sale by the Selling
Shareholder of the Shares to be sold by the Selling
Shareholder as contemplated by this Agreement will not
conflict with, result in a breach of, or constitute a default
under the certificate of incorporation or by-laws of the
Selling Shareholder, any judgment, decree or order known to
such counsel to which the Selling Shareholder is a party or by
which the Selling Shareholder or any of its properties may be
bound, or any statute, rule or regulation.
(iv) All of the Selling Shareholder's rights
in the Shares to be sold by the Selling Shareholder pursuant
to this Agreement, have been transferred to the Underwriters
who have severally purchased such Shares pursuant to this
Agreement, free and clear of adverse claims, assuming for
purposes of this opinion that the Underwriters purchased the
same in good
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30
faith without notice of any adverse claims and have paid the
purchase price payable with respect thereto pursuant to
Section 1 hereof.
(v) To the knowledge of such counsel, no
consent, approval, authorization, license, certificate, permit
or order of any court, governmental or regulatory agency,
authority or body or financial institution is required in
connection with the performance of this Agreement by the
Selling Shareholder or the consummation of the transactions
contemplated hereby, including the delivery and sale of the
Shares to be delivered and sold by the Selling Shareholder,
except such as may be required under state securities or blue
sky laws in connection with the purchase and distribution of
the Shares by the Underwriters.
To the extent deemed advisable by such counsel, such counsel
may rely as to matters of fact on certificates of officers of the
Selling Shareholder. Copies of such certificates shall be furnished to
the Representatives and counsel for the Underwriters.
(k) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and their counsel, and the Underwriters shall have received from
Xxxxxx, Xxxx & Xxxxxxxx LLP, United States counsel to the Underwriters,
and from De Brauw Blackstone Westbroek, Dutch counsel to the
Underwriters, favorable opinions, addressed to the Representatives and
dated such Closing Date, with respect to the Shares, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably request, and the Company shall have
furnished to Xxxxxx, Xxxx & Xxxxxxxx LLP and De Brauw Blackstone
Westbroek such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(l) The Representatives shall have received Lock-up Agreements
executed by each entity or person identified in Section 4(o).
(m) The Company and the Selling Shareholder shall have
furnished or caused to be furnished to the Representatives such further
certificates or documents as the Representatives shall have reasonably
requested.
(n) If the Shares have been qualified for sale in Florida, the
Representatives shall have received on each Closing Date certificates,
addressed to the Representatives, and dated such Closing Date, of an
executive officer of the Company, to the effect that the signer of such
certificate has reviewed and understands the provisions of Section
517.075 of the Florida Statutes, and represents that the Company has
complied, and at all times will comply, with all provisions of Section
517.075 and further, that as of such Closing Date, neither the Company
nor any of its affiliates does business with the government of Cuba or
with any person or affiliate located in Cuba.
7. Covenants of the Company.
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31
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to
cause the Registration Statement, if not effective at the time
of execution of this Agreement, and any amendments thereto, to
become effective as promptly as possible. The Company shall
prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act.
(ii) The Company shall promptly advise the
Representatives in writing (i) when any amendment to the
Registration Statement shall have become effective, (ii) of
any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) of the prevention or suspension of the use
of any Preliminary Prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the
Representatives a copy for its review prior to filing and
shall not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company shall
prepare and file with the Commission, promptly upon the
Representatives' reasonable request, any amendment or
supplement to the Registration Statement or the Prospectus
which, in the reasonable opinion of Underwriter's counsel, may
be necessary or advisable in connection with the distribution
of the Shares. The Company shall use its best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(iii) If, at any time when a prospectus
relating to the Shares is required to be delivered under the
Securities Act and the Rules, any event occurs as a result of
which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act
or the Rules, the Company promptly shall prepare and file with
the Commission, subject to the second sentence of paragraph
(ii) of this Section 7(a), an amendment or supplement which
shall correct such statement or omission or an amendment which
shall effect such compliance.
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32
(iv) The Company shall make generally available to
its security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date occurs (or 90 days
if such 12-month period coincides with the Company's fiscal
year), an earning statement (which need not be audited) of the
Company, covering such 12-month period, which shall satisfy
the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(v) The Company shall furnish to the Representatives
and counsel for the Underwriters, without charge, signed
copies of the Registration Statement (including all exhibits
thereto and amendments thereof), and to each other Underwriter
a copy of the Registration Statement (without exhibits
thereto) and all amendments thereof and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by
the Securities Act or the Rules, as many copies of any
Preliminary Prospectus and the Prospectus and any amendments
thereof and supplements thereto as the Representatives may
reasonably request.
(vi) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify
the Shares for offer and sale in connection with the offering
under the laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect
so long as required for the distribution of the Shares;
provided, however, that the Company shall not be required in
connection therewith, as a condition thereof, to qualify as a
foreign corporation or to execute a general consent to service
of process in any jurisdiction or subject itself to taxation
as doing business in any jurisdiction.
(vii) Without the prior written consent of CIBC World
Markets Corp., for a period of 180 days after the date of the
Prospectus, the Company shall not issue, sell or register with
the Commission (other than on Form S-8 or on any successor
form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities
convertible into, exercisable for or exchangeable for equity
securities of the Company), except for the issuance of the
Shares pursuant to the Registration Statement and the issuance
of securities pursuant to the Company's existing stock option
or stock purchase plan as described in the Registration
Statement and the Prospectus. In the event that during this
period, (i) any shares are issued pursuant to the Company's
existing stock incentive plan that are exercisable during such
180 day period or (ii) any registration is effected on Form
S-8 or on any successor form relating to shares that are
exercisable during such 180 period, the Company shall obtain a
Lock-Up Agreement of such grantee or purchaser or holder of
such securities.
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33
(viii) On or before completion of this offering, the
Company shall make all filings required under applicable
securities laws and by the Nasdaq National Market (including
any required registration under the Exchange Act).
(ix) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(x) The Company shall file timely and accurate
reports in accordance with the provisions of Florida Statutes
Section 517.075, or any successor provision, and any
regulation promulgated thereunder, if at any time after the
Effective Date, the Company or any of its affiliates commences
engaging in business with the government of Cuba or any person
or affiliate located in Cuba.
(xi) If any payment of any sum due under this
Agreement from the Company is made to or received by the
Underwriters or any controlling person of any Underwriter in a
currency other than freely transferable United States dollars,
whether by judicial judgment or otherwise, the obligations of
the Company, as the case may be, under this Agreement shall be
discharged only to the extent of the net amount of freely
transferable United States dollars that the Underwriters or
such controlling persons, as the case may be, in accordance
with normal bank procedures, are able to lawfully purchase
with such amount of such other currency on the date of
payment. To the extent that the Underwriters or such
controlling persons are not able to purchase sufficient United
States dollars with such amount of such other currency on the
date of payment to discharge the obligations of the Company,
as the case may be, to the Underwriters or such controlling
persons, the obligations of the Company, as the case may be,
to the Underwriters or such controlling persons, as the case
may be, shall not be discharged with respect to such
difference, and any such undischarged amount will be due as a
separate obligation and shall not be affected by payment of or
judgment being obtained for any other sums due under or in
respect of this Agreement.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses
incident to the public offering of the Shares and the performance of
the obligations of the Company under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of
the Registration Statement, including all exhibits thereto, each
Preliminary Prospectus, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, and the printing,
filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under
the securities or blue sky laws of the various jurisdictions referred
to in Section 7(a)(vi), including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such registration
and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary
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34
blue sky memoranda; (iv) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of copies
of each Preliminary Prospectus, the Prospectus and all amendments or
supplements to the Prospectus, and of the several documents required by
this Section to be so furnished, as may be reasonably requested for use
in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold; (v) the filing
fees of the NASD in connection with its review of the terms of the
public offering and reasonable fees and disbursements of counsel for
the Underwriters in connection with such filing and review; (vi)
inclusion of the Shares for quotation on the Nasdaq National Market;
and (vii) all transfer and stamp taxes, if any, with respect to the
sale and delivery of the Shares by the Company and the Selling
Shareholder to the Underwriters. Subject to the provisions of Section
10, the Underwriters agree to pay, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated,
all costs and expenses incident to the performance of the obligations
of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the
fees and disbursements of counsel for the Underwriters.
(c) The Company covenants and agrees with the several
Underwriters that in any suit (whether in a court in the United States,
the Netherlands or elsewhere) seeking enforcement of this Agreement,
(i) no defense (other than a procedural defense) given or allowed by
the laws of any other state or country shall be interposed in any suit,
action or proceeding hereon unless such defense is also given or
allowed by the laws of the State of New York or of the United States,
(ii) if the plaintiffs thereon seek that a judgment otherwise awarded
to the plaintiffs be awarded in either United States dollars or
Netherlands currency, subject to Netherlands foreign currency control
regulations, the Company will not interpose any defense or objection to
or otherwise oppose the award of a judgment, if any, in such currencies
except to the extent that such a judgment would violate the laws of the
Netherlands, and (iii) if the plaintiffs therein seek to have any
judgment (or any aspect thereof) awarded in Netherlands currency
linked, for the period from entry of such judgment until actual payment
thereof in full has been made, to changes in the United States dollar
exchange rate with respect to the currency of the Netherlands, the
Company will not interpose any defense or objection to or otherwise
oppose inclusion of such linkage in any such judgment except to the
extent that such a judgment would violate the laws of the Netherlands.
The Company agrees that it will not initiate or seek to initiate any
action, suit or proceeding, in the Netherlands or in any other
jurisdiction other than in the United States, seeking damages or for
the purpose of obtaining any injunction or declaratory judgment against
the enforcement of, or declaratory judgment concerning any alleged
breach by the Company of, or other claim by the Underwriters in respect
of, this Agreement or any of the Underwriters' rights under this
Agreement, including, without limitation; any action, suit or
proceeding challenging the enforceability of or seeking to invalidate
in any respect the submission by the Company hereunder to the
jurisdiction of federal or New York state courts or the designation of
the laws of the State of New York as the law applicable to this
Agreement.
8. Indemnification.
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35
(a) (i) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against
any and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based (i) upon any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or
supplement thereto, or in any blue sky application or other
information or other documents executed by the Company filed
in any state or other jurisdiction to qualify any or all of
the Shares under the securities laws thereof (any such
application, document or information being hereinafter
referred to as a "Blue Sky Application"), (ii) upon any
omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or
any amendment thereof or supplement thereto, or in any Blue
Sky Application, a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) in whole or in part upon any breach of the
representations and warranties set forth in Section 4 hereof,
or (iv) in whole or in part upon any failure of the Company to
perform any of its obligations hereunder or under law;
provided, however, that such indemnity shall not inure to the
benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person
by such Underwriter if such untrue statement or omission or
alleged untrue statement or omission was made in such
Preliminary Prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement thereto, or in any
Blue Sky Application, in reliance upon and in conformity with
information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for
use therein. With respect to the preceding sentence, the
Company acknowledges that the only information furnished in
writing by the Representatives on behalf of the several
Underwriters for use in the Registration Statement or the
Prospectus are the statements contained under the caption
"Underwriting" in the Prospectus. This indemnity agreement
will be in addition to any liability which the Company may
otherwise have.
(ii) The Selling Shareholder agrees to indemnify and
hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against
any and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are
- 35 -
36
based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or
any amendment thereof or supplement thereto, or in any Blue
Sky Application, (ii) upon any omission or alleged omission to
state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or
supplement thereto, or in any Blue Sky Application, a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) in whole or in part
upon any breach of the representations and warranties set
forth in Section 5 hereof, or (iv) in whole or in part upon
any failure of the Selling Shareholder to perform any of its
obligations hereunder or under law, but only, in the case of
clauses (i) and (ii) above, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or
omission which was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, in reliance on and in
conformity with any of the Selling Shareholder Information.
Notwithstanding the foregoing, (A) the liability of the
Selling Shareholder pursuant to the provisions of this Section
8 shall be limited to an amount equal to the aggregate net
proceeds received by the Selling Shareholder from the sale of
the Shares sold by the Selling Shareholder hereunder, and (B)
the Selling Shareholder shall not be liable in any such case
with respect to any Preliminary Prospectus if at or prior to
the written confirmation of the sale of the Shares sold by the
Selling Shareholder hereunder a copy of the Prospectus (or the
Prospectus as amended or supplemented) was required by law to
be, but was not, sent or delivered to such person making the
claim and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
This indemnity agreement will be in addition to any liability
which the Selling Shareholder may otherwise have.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
Selling Shareholder and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the
Registration Statement, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, in
reliance on and in conformity with information furnished in
writing to the Company by the Representatives on behalf of the
Underwriters specifically for use therein; provided, however,
that the obligation of each Underwriter to indemnify the
Company or any Selling Shareholder (including any controlling
person, director or officer thereof) shall be limited to the
underwriting discounts and commissions received by such
Underwriter. With respect to the preceding sentence, the
Company acknowledges that the only information furnished in
writing by the Representatives on behalf of the several
Underwriters for use in the Registration
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37
Statement or the Prospectus are the statements contained under
the caption "Underwriting" in the Prospectus.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding
against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section,
notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all
papers served. No indemnification provided for in Section 8(a)
or 8(b) shall be available to any party who shall fail to give
notice as provided in this Section 8(c) to the extent that the
party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the
omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for
contribution or otherwise other than under this Section 8. In
case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and,
to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof and the approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party
in connection with the defense thereof. The indemnified party
shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified
party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different
from or in addition to those available to the indemnifying
party (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of
the indemnified party) or (iii) the indemnifying parties shall
not have employed counsel to assume the defense of such action
within a reasonable time after notice of the commencement
thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties.
An indemnifying party shall not be liable for any settlement
of any action, suit, proceeding or claim effected without its
written consent, which consent shall not be unreasonably
withheld or delayed.
9. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 8(a) or 8(b) is due in accordance with its terms but for any
reason is held to be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b), then each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any
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38
contribution received by any person entitled hereunder to contribution from any
person who may be liable for contribution) to which the indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 8 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
and the Selling Shareholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Shareholder and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of underwriting
discounts but before deducting expenses) received by the Company or the Selling
Shareholder, as set forth in the table on the cover page of the Prospectus, bear
to (y) the underwriting discounts received by the Underwriters, as set forth in
the table on the cover page of the Prospectus. The relative fault of the Company
and the Selling Shareholder or the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact related to information supplied by the Company and the Selling
Shareholder or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Shareholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 9, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder; (ii) the Company shall be liable and
responsible for any amount in excess of such underwriting discount; and (iii) in
no case shall the Selling Shareholder be liable and responsible for any amount
in excess of the aggregate net proceeds of the sale of Shares received by the
Selling Shareholder; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 9. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The
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39
Underwriter's obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Representatives
by notifying the Company and the Selling Shareholder at any time, if:
(a) in the absolute discretion of the Representatives, at
or before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representatives will in the
future materially disrupt, the securities markets; (ii) if there
has occurred any new outbreak or material escalation of hostilities
or other calamity or crisis the effect of which on the financial
markets of the United States or the Netherlands is such as to make
it, in the judgment of the Representatives, inadvisable to proceed
with the offering; (iii) if the effect of a material adverse change
in general financial, political or economic conditions or the
effect of international conditions on the financial markets in the
United States or the Netherlands is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable to
market the Shares; (iv) if trading in the Common Shares has been
suspended by the Commission or by the AEX-Stock Exchange or trading
generally on the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., the Nasdaq National Market or the AEX-Stock
Exchange has been suspended or limited, or minimum or maximum
ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the National Association
of Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been
declared by any state or federal authority; or (vi) if, in the
judgment of the Representatives, there has occurred a Material
Adverse Effect, or
(b) at or before any Closing Date, any of the conditions
specified in Section 6 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor the Selling Shareholder shall be under any
liability to any Underwriter, and no Underwriter shall be under any liability to
the Company or the Selling Shareholder, except that (y) if this Agreement is
terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company or the Selling Shareholder to
comply with the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the Shares or in
contemplation of performing their obligations hereunder and (z) no Underwriter
who shall have failed or refused to purchase the Shares agreed to be purchased
by it under this Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement, shall be
relieved of liability to the Company, the Selling Shareholder or to the other
Underwriters for damages occasioned by its failure or refusal.
11. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement
- 39 -
40
under Section 10) to purchase on any Closing Date the Shares agreed to be
purchased on such Closing Date by such Underwriter or Underwriters, the
Representatives may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as the Representatives may deem advisable
or one or more of the remaining Underwriters may agree to purchase such Shares
in such proportions as may be approved by the Representatives, in each case upon
the terms set forth in this Agreement. If no such arrangements have been made by
the close of business on the business day following such Closing Date:
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing
Date, then each of the nondefaulting Underwriters shall be obligated to
purchase such Shares on the terms herein set forth in proportion to
their respective obligations hereunder; provided, that in no event
shall the maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 11
by more than one-ninth of such number of Shares without the written
consent of such Underwriter; or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date,
then the Company shall be entitled to one additional business day
within which it may, but is not obligated to, find one or more
substitute underwriters reasonably satisfactory to the Representatives
to purchase such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period of not
more than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Shareholder and without liability on the part of the Company, except in both
cases as provided in Sections 7(b), 8, 9 and 10. The provisions of this Section
shall not in any way affect the liability of any defaulting Underwriter to the
Company, the Selling Shareholder or the nondefaulting Underwriters arising out
of such default. A substitute underwriter hereunder shall become an Underwriter
for all purposes of this Agreement.
12. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
(a) By the execution and delivery of this Agreement, the
Selling Shareholder hereby designates and appoints
______________________ as the authorized agent of the Selling
Shareholder, upon whom process may be served in any suit, proceeding or
other action against the Selling Shareholder instituted by any
Underwriter or by any
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41
person controlling an Underwriter as to which such Underwriter or any
such controlling person is a party and based upon this Agreement, or in
any other action against the Selling Shareholder in any federal or
state court sitting in the County of New York, arising out of the
offering made by the Prospectus or any purchase or sale of securities
in connection therewith. The Selling Shareholder expressly accepts
jurisdiction of any such court in respect of any such suit, proceeding
or other action and, without limiting other methods of obtaining
jurisdiction, expressly submits to nonexclusive personal jurisdiction
of any such court in respect of any such suit, proceeding or other
action. Such designation and appointment shall be irrevocable, unless
and until a successor authorized agent in the County and State of New
York reasonably acceptable to the Representatives shall have been
appointed by the Company, such successor shall have accepted such
appointment and written notice thereof shall have been given to the
Underwriters. The Selling Shareholder further agrees that service of
process upon its authorized agent or successor (and written notice of
said service to the Company mailed by certified mail or sent by telex
or delivered, as provided in Section 15 hereof) shall be deemed in
every respect personal service of process upon the Selling Shareholder
in any such suit, proceeding or other action. In the event that service
of any process or notice of motion or other application to any such
court in connection with any such motion in connection with any such
action or proceeding cannot be made in the manner described above, such
service may be made in the manner set forth in conformance with the
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents on Civil and Commercial Matters or any successor convention
or treaty. The Selling Shareholder hereby irrevocably waives any
objection that it may have or hereafter have to the laying of venue of
any such action or proceeding arising out of or based on the Shares or
this Agreement or otherwise relating to the offering, issuance and sale
of the Shares in any federal or state court sitting in the County of
New York and hereby further irrevocably waives any claim that any such
action or proceeding in any such court has been brought in an
inconvenient forum. The Selling Shareholder agrees that any final
judgment after exhaustion of all appeals or the expiration of time to
appeal in any such action or proceeding arising out of the sale of the
Shares or this Agreement rendered by any such federal court or state
court shall be conclusive and may be enforced in any other jurisdiction
by suit on the judgment or in any other manner provided by law. Nothing
contained in this Agreement shall affect or limit the right of the
Underwriters to serve any process or notice of motion or other
application in any other manner permitted by law or limit or affect the
right of the Underwriters to bring any action or proceeding against the
Selling Shareholder or any of its property in the courts of any other
jurisdiction. The Selling Shareholder further agrees to take any and
all action, including the execution and filing of all such instruments
and documents, as may be necessary to continue such designations and
appointments or such substitute designations and appointments in full
force and effect for a period of six years from the date hereof. The
Selling Shareholder hereby agrees with the Underwriters to the
exclusive jurisdiction of the courts of the State of New York, or the
federal courts sitting in the County of New York, in connection with
any action brought by the Selling Shareholder.
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42
(b) By the execution and delivery of this Agreement, the
Company hereby designates and appoints
_________________________________________________ as the authorized
agent of the Company, upon whom process may be served in any suit,
proceeding or other action against the Company instituted by any
Underwriter or by any person controlling an Underwriter as to which
such Underwriter or any such controlling person is a party and
based upon this Agreement, or in any other action against the
Company in any federal or state court sitting in the County of New
York, arising out of the offering made by the Prospectus or any
purchase or sale of securities in connection therewith. The Company
expressly accepts jurisdiction of any such court in respect of any
such suit, proceeding or other action and, without limiting other
methods of obtaining jurisdiction, expressly submits to
nonexclusive personal jurisdiction of any such court in respect of
any such suit, proceeding or other action. Such designation and
appointment shall be irrevocable, unless and until a successor
authorized agent in the County and State of New York reasonably
acceptable to the Representatives shall have been appointed by the
Company, such successor shall have accepted such appointment and
written notice thereof shall have been given to the Underwriters.
The Company further agrees that service of process upon its
authorized agent or successor (and written notice of said service
to the Company mailed by certified mail or sent by telex or
delivered, as provided in Section 15 hereto) shall be deemed in
every respect personal service of process upon the Company in any
such suit, proceeding or other action. In the event that service of
any process or notice of motion or other application to any such
court in connection with any such motion in connection with any
such action or proceeding cannot be made in the manner described
above, such service may be made in the manner set forth in
conformance with the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents on Civil and Commercial
Matters or any successor convention or treaty. The Company hereby
irrevocably waives any objection that it may have or hereafter have
to the laying of venue of any such action or proceeding arising out
of or based on the Shares or this Agreement or otherwise relating
to the offering, issuance and sale of the Shares in any federal or
state court sitting in the County of New York and hereby further
irrevocably waives any claim that any such action or proceeding in
any such court has been brought in an inconvenient forum. The
Company agrees that any final judgment after exhaustion of all
appeals or the expiration of time to appeal in any such action or
proceeding arising out of the sale of the Shares or this Agreement
rendered by any such federal court or state court shall be
conclusive, and subject to the limitations on enforcement set forth
in the opinion referred to in Section 6(g) hereof pursuant to
Section 6(g)(xvii) hereof, may be enforced in any other
jurisdiction by suit on the judgment or in any other manner
provided by law. Nothing contained in this Agreement shall affect
or limit the right of the Underwriters to serve any process or
notice of motion or other application in any other manner permitted
by law or limit or affect the right of the Underwriters to bring
any action or proceeding against the Company or any of its property
in the courts of any other jurisdiction. The Company further agrees
to take any and all action, including the execution and filing of
all such instruments and documents, as may be necessary to continue
such designations and appointments or such substitute designations
and appointments in full force and effect for a period of six years
from the date hereof. The Company hereby agrees with the
Underwriters to the exclusive jurisdiction of the courts of the
State of New York, or
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43
the federal courts sitting in the County of New York, in connection
with any action brought by the Company.
To the extent that the Company or the Selling Shareholder
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise), with respect
to itself or its property, it hereby irrevocably waives such immunity in respect
of its obligations under this Agreement in any action instituted in any New York
court or any court of competent jurisdiction in the Netherlands.
This Section and the waivers contained herein are intended
only for the parties hereto and shall not be construed to give any third parties
any rights.
13. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company and
the Selling Shareholder and of the Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Selling Shareholder or any of the officers, directors or controlling persons
referred to in Sections 8 and 9 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 7(b), 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Shareholder and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, or the Company, and directors and
officers of the Company, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser of
Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Representatives, c/o CIBC World Markets
Corp., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx
Xxxxxxx, with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, and (b) if to the
Company, to its agent for service as such agent's address appears on the cover
page of the Registration Statement, with a copy to
______________________________________________, and (c) if to the Selling
Shareholder, to ____________________________________________, with a copy to
_________________________________________.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
- 43 -
44
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
ASM INTERNATIONAL N.V.
By:
Title:
APPLIED MATERIALS INC.
By:
Title: Attorney-in-Fact
Confirmed:
CIBC WORLD MARKETS CORP.
XXXXXXXXX XXXXXXXX
XXXXXXX XXXXXX READ LLC
Acting severally on behalf of themselves
and as representatives of the several
Underwriters named in Schedule I hereto.
By: CIBC WORLD MARKETS CORP.
By:
Title:
- 44 -
45
SCHEDULE I
UNDERWRITERS
Number of
Firm Shares to
Name Be Purchased
---- ------------
CIBC World Markets Corp.
Xxxxxxxxx Xxxxxxxx
Warburg Dillon Read LLC
------------
Total:
46
SCHEDULE II
SELLING SHAREHOLDER
Number of
Firm Shares to
Name Be Sold
---- -------
------------
Total:
