EXHIBIT 1.3
Execution Copy
Xxxxx-Illinois, Inc.
2,950,000 Shares
Common Stock
($.01 par value)
INTERNATIONAL UNDERWRITING AGREEMENT
London, England
May 13, 1997
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
c/o SALOMON BROTHERS INTERNATIONAL LIMITED
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X XXX XXXXXXX
Dear Sirs:
Xxxxx-Illinois, Inc. a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule I hereto (the "International
Underwriters"), for whom you, Salomon Brothers International Limited, are acting
as representative (the "International Representative"), 2,950,000 shares of
Common Stock, $.01 par value ("Common Stock"), of the Company (the
"International Underwritten Securities"). The Company also proposes to grant to
the International Underwriters an option to purchase up to 442,500 additional
shares of Common Stock (the "International Option Securities"; the International
Option Securities, together with the International Underwritten Securities,
being hereinafter called the "International Securities").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-25175), which registration statement also constitutes, pursuant to Rule 429
under the Securities Act of 1933, as amended (the "Securities Act"),
Post-Effective Amendment No. 1 to the Registration Statement (File No.
33-51982), as amended, relating to the Securities and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act. Such
registration statements, as amended, have been declared effective by the
Commission. In addition, the Company has prepared and filed with the Commission
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the Preliminary Prospectus (as defined herein) pursuant to Rule 424(b) under the
Securities Act in accordance with Rule 424(b) under the Securities Act.
It is understood and agreed to by all the parties that the Company is
concurrently entering into a U.S. Underwriting Agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for the sale by the Company of an
aggregate of 11,800,000 shares of Common Stock (said shares to be sold by the
Company pursuant to the U.S. Underwriting Agreement being hereinafter called the
"U.S. Underwritten Securities"), in the United States and Canada through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom Salomon Brothers Inc, is acting as
representative (the "U.S. Representative"), and providing for the grant to the
U.S. Underwriters of an option to purchase from the Company up to 1,770,000
additional shares of Common Stock (the "U.S. Option Securities"; the U.S. Option
Securities, together with the Underwritten U.S. Securities, being hereinafter
called the "U.S. Securities" and the International Securities, together with the
U.S. Securities, being hereinafter called the "Securities"). Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the U.S. Underwriting Agreement are hereby expressly made
conditional upon one another. It is further understood and agreed that the U.S.
Underwriters and the International Underwriters have entered into an Agreement
Between U.S. Underwriters and International Underwriters dated the date hereof
(the "Agreement Between U.S. Underwriters and International Underwriters"),
pursuant to which, among other things, the International Underwriters may
purchase from the U.S. Underwriters a portion of the U.S. Securities to be sold
pursuant to the U.S. Underwriting Agreement and the U.S. Underwriters may
purchase from the International Underwriters a portion of the International
Securities to be sold pursuant to the International Underwriting Agreement.
It is further understood that two forms of prospectus are to be used
in connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and sold to
United States and Canadian Persons (each as defined herein), and one form of
prospectus relating to the International Securities, which are to be offered and
sold to persons other than United States and Canadian Persons. Such form of
prospectus, including any prospectus supplement, relating to the U.S. Securities
as first filed pursuant to Rule 424(b) or, if no filing pursuant to Rule 424(b)
is made, such form of prospectus included in the Registration Statement at the
Effective Date, is
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hereinafter called the "U.S. Prospectus"; such form of prospectus, including any
prospectus supplement, relating to the International Securities as first filed
pursuant to Rule 424(b) or, if no filing pursuant to Rule 424(b) is made, such
form of prospectus included in the Registration Statement at the Effective Date,
is hereinafter called the "International Prospectus"; and the U.S. Prospectus
and the International Prospectus are hereinafter collectively called the
"Prospectuses". "Preliminary U.S. Prospectus" shall mean any preliminary
prospectus, including any preliminary prospectus supplement, used in connection
with the offer of any U.S. Securities prior to the date hereof that omits
Rule 430A Information (as defined herein). "Preliminary International
Prospectus" shall mean any preliminary prospectus, including any preliminary
prospectus supplement, used in connection with the offer of any International
Securities prior to the date hereof that omits Rule 430A Information (as defined
herein); and the U.S. Prospectus and the International Prospectus are
hereinafter collectively called the "Preliminary Prospectuses". "United States
or Canadian Person" shall mean any person who is a national or resident of the
United States or Canada, any corporation, partnership, or other entity created
or organized in or under the laws of the United States or Canada or of any
political subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian federal income taxation, regardless of its
source (other than any non-United States or non-Canadian branch of any United
States or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person. "U.S." or
"United States" shall mean the United States of America (including the states
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
The term "the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Registration
Statement" shall mean the registration statements referred to above, including
incorporated documents and financial statements, as amended at the Execution
Time (or, if not effective at the Execution Time, in the form in which it shall
become effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as defined herein), shall also mean such
registration statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein as provided by Rule 430A. "Rule 430A
Information" means information with respect to the Securities and the offering
thereto permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, Preliminary Prospectuses or the Prospectuses shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities and Exchange Act of
1934, as amended (the "Exchange Act") on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectuses or the
Prospectuses, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
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Statement, any Preliminary Prospectuses or the Prospectuses shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectuses or the Prospectuses, as the case may be, deemed to be
incorporated therein by reference.
1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants, as of the date hereof and as of the Closing Date, to and agrees
with each of the International Underwriters as follows:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act. The Registration Statement, at the time the
Registration Statement became effective, as of the Closing Date and as
amended or supplemented, if applicable, and the International Prospectus,
when it is first filed in accordance with Rule 424(b) under the Securities
Act and on the Closing Date, complied and will comply, as the case may be,
in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder.
(ii) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect and
no proceedings for such purpose are pending before or threatened by the
Commission; and any required filing of the International Prospectus
pursuant to Rule 424(b) under the Securities Act has been made in
accordance with Rule 424(b) under the Securities Act.
(iii) The Registration Statement, at the time the Registration
Statement became effective, as amended or supplemented (or, if an amendment
to the Registration Statement or an annual report on Form 10-K has been
filed by the Company with the Commission subsequent to the Effective Date,
then at the time of the most recent such filing) did not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The International Prospectus, at the time the Registration
Statement became effective, as amended or supplemented and as of the
Closing Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or International Prospectus made in
reliance upon and in conformity with information
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furnished to the Company in writing by any of you expressly for use in the
Registration Statement or International Prospectus.
(iv) The documents incorporated by reference in the Registration
Statement and International Prospectus, as amended or supplemented, if
applicable, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and, when read together with the other information in
the International Prospectus, at the time the Registration Statement and
any amendments thereto became or become effective and at the Closing Date,
did not and will not contain an untrue statement of a material fact and
will not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(v) Each of Ernst & Young LLP ("Ernst & Young"), K.P.M.G. S.p.A.
and Xxxxxx Xxxxxxxx S.p.A., who are reporting upon the audited financial
statements and schedules included or incorporated by reference in the
Registration Statement and the International Prospectus, each as amended or
supplemented, if applicable, are independent public accountants as required
by the Securities Act.
(vi) (A) The consolidated financial statements and the related notes
of the Company included or incorporated by reference in the Registration
Statement and the International Prospectus, or in any supplement thereto or
amendment thereof, present fairly the consolidated financial position of
the Company and its subsidiaries, considered as one enterprise, as of the
dates indicated and the consolidated results of operations and changes in
financial position of the Company and its subsidiaries, considered as one
enterprise, for the periods specified; (B) such financial statements and
related notes have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved; and (C) the financial statement schedules incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein.
(vii) The pro forma financial statements contained in the Preliminary
International Prospectus and the International Prospectus under the heading
"Unaudited Pro Forma Consolidated Financial
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Information" have been prepared on a basis consistent with the historical
statements referred to in (vi) above, except for the pro forma adjustments
specified therein, and (A) include all material adjustments to the
historical financial data required by Rule 11-02 of Regulation S-X
necessary to reflect the AVIR Acquisition and the Refinancing (each as
defined in the Preliminary International Prospectus or the International
Prospectus), (B) give effect to the assumptions made on a reasonable basis,
(C) present fairly in all material respects in accordance with generally
accepted accounting principles consistently applied throughout such
periods, the historical and proposed transactions contemplated by the
Preliminary International Prospectus and the International Prospectus and
(D) comply in all material respects with the requirements of Rules 11-01
and 11-02 of Regulation S-X; and the other pro forma financial information
and pro forma financial data set forth in the International Prospectus
under the captions "Summary -- Summary Historical and Pro Forma Financial
Data" and "Consolidated Capitalization" are derived from such "Unaudited
Pro Forma Consolidated Financial Information."
(viii) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the International Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), properties, assets, business or results of operations of the
Company and its subsidiaries, considered as one enterprise (a "Material
Adverse Effect").
(ix) Each subsidiary of the Company that is a "Significant
Subsidiary" (as defined in Rule 1-02 of Regulation S-X under the Securities
Act) (hereinafter a "Significant Subsidiary") has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the
International Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
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business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect.
(x) All of the issued and outstanding shares of capital stock of
the Company have been duly authorized and are validly issued, fully paid
and non-assessable.
(xi) All of the issued and outstanding capital stock of each
Significant Subsidiary of the Company (including Xxxxx-Illinois Group,
Inc., a Delaware corporation and a wholly-owned subsidiary of the Company)
has been duly authorized, is validly issued, fully paid and non-assessable
and, except as set forth in Schedule II hereto, is owned by the Company,
directly or through one or more subsidiaries of the Company, free and clear
of any material lien.
(xii) There are no holders of securities (debt or equity) of the
Company, or holders of rights (including preemptive rights), warrants or
options to obtain securities of the Company, who have the right to request
the Company to register securities held by them under the Securities Act,
except for the Registration Rights Agreement dated as of March 17, 1986 by
and among OII Holdings Corporation (the predecessor in interest to the
Company), KKR Partners II, L.P., OII Associates, L.P., OII Associates II,
L.P. and KKR Associates, L.P.
(xiii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement; the execution and
delivery of, and the performance by the Company of its obligations under,
this Agreement have been authorized by all necessary corporate action of
the Company; and this Agreement has been duly executed and delivered by the
Company.
(xiv) The Securities to be issued and sold by the Company pursuant to
this Agreement and the U.S. Underwriting Agreement have been duly
authorized and, when issued to and paid for by you in accordance with the
terms of this Agreement and the U.S. Underwriting Agreement, will be
validly issued, fully paid and non-assessable and, to the best of our
knowledge, free of preemptive rights.
(xv) Since the respective dates as of which information is given in
the Registration Statement and the International Prospectus, except as
otherwise stated therein, contemplated thereby or otherwise incorporated by
reference therein, there has not been
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(A) any material adverse change in the condition (financial or otherwise),
properties, assets, business, or results of operations of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Change"), (B) any
transaction entered into by the Company or any of its subsidiaries, other
than in the ordinary course of business, that could have a Material Adverse
Effect, or (C) any dividend or distribution of any kind declared, paid or
made by the Company on its Capital Stock.
(xvi) Neither the Company nor any of its subsidiaries is (A) in
violation of its certificate of incorporation or by-laws or in default (nor
has an event occurred that with notice or passage of time or both would
constitute such a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
material agreement or instrument to which the Company or its subsidiaries
is subject or by which any of them or any of their properties or assets may
be bound or affected, (B) in violation of any existing applicable law,
ordinance, regulation, judgment, order or decree of any government,
governmental instrumentality, arbitrator or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets or (C) in each case to the knowledge of the
Company, in violation of or has violated any permit, certificate, license,
order or other approval or authorization required in connection with the
operation of its business that, with respect to each of clause (A), (B) and
(C) of this paragraph, would (individually or in the aggregate) (I)
adversely affect the legality, validity or enforceability of this Agreement
or the International Securities, (II) have a Material Adverse Effect or
(III) impair the ability of the Company to fully perform on a timely basis
any obligations that it has under this Agreement or the International
Securities.
(xvii) The issuance, sale and delivery of the International
Securities, the execution, delivery and performance by the Company of this
Agreement, the compliance by the Company with the terms herein and the
consummation by the Company of the transactions contemplated hereby and in
the Registration Statement and the International Prospectus, do not and
will not result in a violation of any of the terms or provisions of the
certificate of incorporation or by-laws of the Company or any of its
subsidiaries, and (A) will not, as of the Closing Date, conflict with, or
result in a
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breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other material agreement or instrument to which
the Company or any of its subsidiaries is a party or by which any of them
or any of their properties or assets is bound, except for such conflicts,
breaches, violations or defaults that would not have a Material Adverse
Effect or (B) do not and will not conflict with or result in a breach or
violation of any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, except for any conflict,
breach or violation that would not have a Material Adverse Effect.
(xviii) No authorization, approval, consent or order of, or
qualification with, any governmental body or agency is required to be
obtained or made by the Company for the due authorization, execution,
delivery and performance by the Company of this Agreement or the valid
authorization, issuance, sale and delivery of the International Securities,
except (A) such as may be required by the securities or blue sky laws of
the various states (the "Blue Sky laws") in connection with the offer and
sale of the International Securities and (B) for such consents that are
required and have been received and are in full force and effect as of the
Closing Date.
(xix) There is no action, suit, investigation or proceeding before or
by any government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries or any of their
properties and assets that (A) is required to be disclosed in the
International Prospectus and is not so disclosed, (B) except as disclosed
in the International Prospectus, could result in any Material Adverse
Change, (C) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance and sale of the International Securities
or the execution and delivery of this Agreement or any of the transactions
contemplated hereby or (D) questions the legality or validity of any such
transaction or seeks to recover damages or obtain other relief in
connection with any such transaction, and, in each case to the knowledge of
the Company, there is no valid basis for any such action, suit,
investigation or proceeding; the aggregate of all pending legal or
governmental
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proceedings to which the Company or any of its subsidiaries is a party or
that affect any of their properties and assets that are not described in
the Registration Statement or the International Prospectus, including
ordinary routine litigation incidental to its business, would not have a
Material Adverse Effect.
(xx) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the International Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required or, in
the case of exhibits, will not be so filed promptly after the Closing Date.
(xxi) Each of the Company and its subsidiaries has good title to all
properties owned by them, in each case free and clear of all liens except
(A) as do not materially interfere with the use made and proposed to be
made of such properties, (B) as set forth in the Registration Statement and
the International Prospectus or (C) as could not reasonably be expected to
have a Material Adverse Effect.
(xxii) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Registration Statement or the
International Prospectus, except to the extent that the failure to so
obtain or file would not have a Material Adverse Effect.
(xxiii) Each of the Company and its subsidiaries owns or possesses, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
proprietary or confidential information, systems or procedures, whether
patented or unpatented), trademarks, service marks and trade names
(collectively, "Intellectual Property") presently employed by them in
connection with the business now operated by them, except where the failure
to own or possess or have the ability to acquire any such Intellectual
Property would not have a Material Adverse Effect, and neither the Company
nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing that, individually or in the aggregate, if the subject of an
unfavorable decision,
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ruling or finding, would result in any Material Adverse Change.
(xxiv) Except as disclosed in the Registration Statement and the
International Prospectus, each of the Company and its subsidiaries is in
material compliance with all applicable existing federal, state, local and
foreign laws and regulations relating to protection of human health, safety
and the environment or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined) ("Environmental
Laws"), except, in each case, where such noncompliance, individually or in
the aggregate, would not have a Material Adverse Effect. The term
"Hazardous Material" means (A) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (B) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (C) any petroleum or petroleum
product, (D) any polychlorinated biphenyl and (E) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental
Law.
(xxv) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the
International Securities or any action resulting in a violation of
Regulation M under the Exchange Act.
(xxvi) The Securities are, or will be when issued, "excepted
securities" within the meaning of Rule 101(c) of Regulation M under the
Exchange Act.
(xxvii) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(xxviii) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba; and
(xxix) The International Securities have been approved for
listing on the New York Stock Exchange;
(b) Any certificate signed by any officer of either the Company or any
of its subsidiaries and delivered to you or to your counsel at the Closing Date
pursuant to this Agreement or the transactions contemplated hereby shall be
deemed a representation and warranty by the Company or
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such subsidiary of the Company, as the case may be, to each of you as to the
matters covered thereby.
2. PURCHASE AND SALE. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each International Underwriter, and each International
Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $27.47 per share, the number of the International
Underwritten Securities set forth opposite such International Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several International Underwriters to purchase, severally and not
jointly, up to an aggregate of 442,500 shares of the International Option
Securities at the same purchase price per share as the International
Underwriters shall pay for the International Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
International Underwritten Securities by the International Underwriters. Said
option may be exercised in whole or in part at any time on or before the 30th
day after the date of the International Prospectus upon written or telegraphic
notice by the International Representative to the Company setting forth the
number of shares of the International Option Securities as to which the several
International Underwriters are exercising the option and the Settlement Date.
Delivery of certificates for the shares of International Option Securities by
the Company, and payment therefor to the Company, shall be made as provided in
Section 3 hereof. The maximum number of shares of the International Option
Securities to be sold by the Company is set forth in Schedule I hereto. In the
event that the International Underwriters exercise less than their full
over-allotment option, the number of shares of the International Option
Securities to be sold by each party listed on Schedule II shall be, as nearly as
practicable, in the same proportion to each other as are the number of shares of
the International Option Securities listed opposite their respective names on
said Schedule II. The number of shares of the International Option Securities
to be purchased by each International Underwriter shall be the same percentage
of the total number of shares of the International Option Securities to be
purchased by the several International Underwriters as such International
Underwriter is purchasing of the International Underwritten Securities, subject
to such adjustments as you in your absolute discretion shall make to eliminate
any fractional shares.
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3. DELIVERY AND PAYMENT. Delivery of and payment for the
International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the business day prior to the Closing Date) shall be made at
10:00 a.m., New York City time, on May 16, 1997, or such later date (not later
than May 22, 1997) as the International Representative and the U.S.
Representative shall designate, which date and time may be postponed by
agreement among the International Representative, the U.S. Representative and
the Company or as provided in Section 11 hereof (such date and time of delivery
and payment for the International Securities being herein called the "Closing
Date"). Delivery of the International Securities shall be made to the
International Representative for the respective accounts of the several
International Underwriters against payment by the several International
Underwriters through the International Representative of the respective
aggregate purchase price thereof to or upon the order of the Company by means of
a wire transfer of immediately available funds in accordance with written
instructions from the Company or through the facilities of The Depository Trust
Company ("DTC"). Delivery of the International Underwritten Securities and the
International Option Securities shall be made at such location as the
International Representative shall reasonably designate at least one business
day in advance of the Closing Date and payment for such International Securities
shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York, New York.
Certificates for the International Securities shall be registered in such names
and in such denominations as the International Representative may request not
less than one full business day in advance of the Closing Date.
If the option to purchase the International Option Securities provided
for in Section 2(b) hereof is exercised by the International Underwriters after
the business day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the International Representative, at Seven World
Trade Center, New York, New York, on the date specified by the International
Representative (which shall be three business days after exercise of said
option, the "Option Closing Date"), delivery of the International Option
Securities shall be made to the International Representative for the
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respective accounts of the several International Underwriters against payment by
the several International Underwriters through the International Representative
of the respective aggregate purchase price thereof to or upon the order of the
Company by means of a wire transfer of immediately available funds in accordance
with written instructions from the Company or through the facilities DTC. If
settlement for the International Option Securities occurs after the Closing
Date, the Company will deliver to the International Representative on the
Settlement Date for the International Option Securities, and the obligation of
the International Underwriters to purchase the International Option Securities
shall be conditioned upon receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 5 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement,
and that the Option Closing Date, if any, shall occur simultaneously with the
"Option Closing Date" under the U.S. Underwriting Agreement.
4. OFFERING BY INTERNATIONAL UNDERWRITERS. It is understood that the
several International Underwriters propose to offer the International Securities
for sale to the public as set forth in the International Prospectus.
5. CONDITIONS TO THE INTERNATIONAL UNDERWRITERS' OBLIGATIONS. The
several obligations of the International Underwriters to purchase and pay for
the International Securities pursuant to this Agreement are subject to the
satisfaction of each of the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) (A) no downgrading shall have occurred in the rating
accorded any of the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization" as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act and regulations thereunder and (B) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of the Company's debt securities or preferred stock; and
(ii) no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that
purpose shall have been instituted and shall be pending or, to your
knowledge or the knowledge of the Company, shall be contemplated by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
satisfaction of your counsel.
(b) The Company shall have furnished to the International Underwriters
a certificate of the Company, signed by the Chairman of the Board or the
President or a Vice President and the Treasurer or
15
Controller of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Registration Statement and the International
Prospectus, there has been no Material Adverse Change.
(c) The International Underwriters shall have received on the Closing
Date an opinion of Xxxxxx & Xxxxxxx, outside counsel for the Company, dated
the Closing Date, in form and substance reasonably satisfactory to your
counsel to the effect that:
(i) the Registration Statement and the International
Prospectus (excluding the documents incorporated therein by reference)
comply as to form in all material respects with the requirements for
registration statements on Form S-3 under the Securities Act and the
rules and regulations of the Commission thereunder; it being
understood, however, that such counsel expresses no opinion with
respect to the financial statements, schedules and other financial and
statistical data included or incorporated in the Registration
Statement or the International Prospectus or with respect to the
Statement as to the Eligibility and Qualification of the Trustee on
Form T-1. In passing upon the compliance as to form of the
Registration Statement and the International Prospectus, such counsel
has assumed that the statements made therein (or incorporated by
reference therein) are correct and complete.
(ii) the Registration Statement has become effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
16
Statement has been issued under the Securities Act and no proceedings
therefor have been initiated or threatened by the Commission; and any
required filing of the International Prospectus pursuant to Rule
424(b) under the Securities Act has been made in accordance with Rule
424(b) under the Securities Act;
(iii) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware,
with corporate power and authority to own or lease its property and to
conduct its business as described in the Registration Statement and
the International Prospectus;
(iv) each of this Agreement and the U.S. Underwriting
Agreement have been duly authorized, executed and delivered by the
Company;
(v) the International Securities and the U.S. Securities to be
issued and sold by the Company pursuant to the International
Underwriting Agreement and the U.S. Underwriting Agreement and the
U.S. Underwriting Agreement, respectively, have been duly authorized
and, when issued to and paid for by you in accordance with the terms
of this Agreement, will be validly issued, fully paid and
non-assessable and, to the best of our knowledge, free of preemptive
rights;
(vi) the execution and delivery by the Company of, and the
issuance and sale of the International Securities by the Company
pursuant to, this Agreement will not result in (A) the violation by
the Company of its Certificate of Incorporation or Bylaws, the General
Corporation Law of the State of Delaware or any federal or New York
statute, or any rule or regulation that has been issued pursuant to
the General Corporation Law of the State of Delaware or any federal or
New York statute known to such counsel to be applicable to the Company
(except that no opinion shall be expressed with respect to state
securities or "blue sky" laws) or (B) after giving effect to written
waivers and consents which have been or will be obtained on or prior
to the Closing, the breach of or a default under (I) any indenture or
other agreement or instrument pertaining to the Company's long-term
debt listed in the International Prospectus Supplement under the
caption "Consolidated Capitalization," excluding long-term debt listed
as "Other," or (II) any court or administrative orders, writs,
17
judgments or decrees specifically directed to the Company and
identified to such counsel by an officer of the Company as material to
the Company;
(vii) to such counsel's knowledge, no authorization, approval,
consent or order of, or filing or qualification with, any federal or
New York State court or governmental body or agency is required to be
obtained or made by the Company for the execution and delivery by the
Company of this Agreement or the issuance and sale of the
International Securities by the Company, except (A) such as may be
required under state securities or blue sky laws in connection with
the purchase and distribution of the International Securities and (B)
except such as have been obtained under the Securities Act and are in
full force and effect as of the Closing Date;
(viii) the statements set forth in the "Description of the Common
Stock" contained in the Company's Registration Statement on Form 8-A
filed on December 3, 1991, as amended, and the statements set forth in
the International Prospectus under the Caption "Certain United States
Federal Tax Consequences For Non-United States Holders," insofar as
such statements constitute summaries of the documents referred to
therein, are accurate in all material respects; and the International
Securities conform in all material respects to the description thereof
in the International Prospectus; and
(ix) the Company is not an "investment company," as such term
is defined in the 1940 Act.
In addition, such counsel shall state that, while they did not prepare
any of the documents incorporated by reference in the Registration
Statement and the International Prospectus, they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
the International Underwriters' representatives at which the contents of
the Registration Statement and the International 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
International Prospectus and have not made any independent check or
verification thereof (except as set forth in paragraph (viii) above),
during the course of such participation (relying as to materiality to the
extent we deemed
18
appropriate upon the statements of officers and other representatives of
the Company), no facts came to such counsel's attention that caused such
counsel to believe that the Registration Statement (including the
incorporated documents), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the International Prospectus (including the
incorporated documents), as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
it being understood that such counsel express no belief with respect to the
financial statements, schedules and other financial and statistical data or
the Statement of Eligibility of the Trustee on Form T-1 included or
incorporated by reference in the Registration Statement or the
International Prospectus.
In rendering such opinion, Xxxxxx & Xxxxxxx may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Company or upon certificates of public
officials and need not express any opinion with regard to the laws of any
jurisdiction other than the federal law of the United States, the law of
the State of New York and the General Corporation Law of the State of
Delaware.
(d) At the Closing Date, each of you shall have received a signed
opinion of Xxxxxx X. Xxxxx, Esq., General Counsel of the Company, dated as
of the Closing Date, in form and substance reasonably satisfactory to your
counsel, to the effect that:
(i) the Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect;
(ii) each Significant Subsidiary (as defined in Rule 1-02 of
Regulation S-X under the Securities Act) of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property
19
and to conduct its business as described in the International
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualifications,
except to the extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect;
(iii) the Company has the authorized capitalization as set forth
in the International Prospectus, including any amendment or supplement
thereto; all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and all of the issued and outstanding
capital stock of such Significant Subsidiaries, except as set forth on
Schedule II hereto, is owned of record by the Company, directly or
through subsidiaries, and is free and clear of any material lien,
claim, encumbrance or other security interest;
(iv) the Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been authorized by all
necessary corporate action of the Company; and this Agreement has been
duly executed and delivered by the Company;
(v) the International Securities and the U.S. Securities to be
issued and sold by the Company pursuant to the U.S. Underwriting
Agreement and the International Underwriting Agreement, respectively,
have been duly authorized and, when issued to and paid for by you in
accordance with the terms of the U.S. Underwriting Agreement and the
International Underwriting Agreement, respectively, will be validly
issued, fully paid and non-assessable and, to the best of our
knowledge, free of preemptive rights.
(vi) the execution and delivery by the Company of, and the
issuance and sale of the International Securities and the U.S.
Securities by the Company pursuant to, this Agreement and the U.S.
Underwriting Agreement will not result in (A) the violation by the
Company of its Certificate of Incorporation or Bylaws, the General
Corporation Law of the State of Delaware or any federal or Ohio
Statute, or any rule or regulation that has been issued pursuant to
the General Corporation
20
Law of the State of Delaware or any federal or state statute known to
such counsel to be applicable to the Company or any of its
subsidiaries (except that no opinion is expressed with respect to
federal or state securities or "blue sky" laws) (B) after giving
effect to written waivers and consents which have been or will be
obtained on or prior to Closing, the breach of or default under (I)
any indenture or other agreement or instrument binding upon the
Company or any of its subsidiaries that is material to the Company and
its subsidiaries considered as one enterprise or (II) any court or
administrative orders, writs, judgments or decrees known to such
officer;
(vii) Such counsel has no knowledge of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties or assets of the
Company or any of its subsidiaries is subject that is required to be
described in the Registration Statement or the International Prospectus and
is not so described therein; or of any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the International Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required; and
(viii) each of the documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
International Prospectus, at the time it was filed with the
Commission, complied as to form in all material respects with the
requirements for such document under the Exchange Act and the
regulations thereunder.
In addition, such counsel shall state that he has participated in
conferences with representatives of the Company, representatives of the
independent public accountants for the Company, and the International
Underwriters' representatives and counsel at which the contents of the
Registration Statement and the International 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 International Prospectus, during
the course of such participation no facts came to such counsel's attention that
caused such counsel to believe that the
21
Registration Statement (including the incorporated documents), at the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the International Prospectus, as of
its date and as of the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel express no
belief with respect to the financial statements, schedules and other financial
and statistical data included or incorporated by reference in the Registration
Statement or the International Prospectus.
In rendering such opinion, such counsel may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Company or upon certificates of public officials, and
need not express any opinion with respect to the laws of any jurisdiction other
than the federal law of the United States, the law of the State of Ohio and the
General Corporation Law of the State of Delaware.
(e) The International Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the International
Underwriters, dated the Closing Date, covering certain matters requested by the
International Underwriters.
(f) At the Closing Date, (i) the Registration Statement and the
International Prospectus, as they may then be amended or supplemented, shall
contain all statements that are required to be stated therein under the
Securities Act and the regulations thereunder and in all material respects shall
conform to the requirements of the Securities Act and the regulations
thereunder, and neither the Registration Statement nor the International
Prospectus, as they may then be amended or supplemented, shall contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the case of the
International Prospectus, in the light of the circumstances under which they
were made, not misleading; (ii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement, any
Material Adverse Change, or any development involving a prospective Material
Adverse Change, whether or not arising in the ordinary course of business; (iii)
no action, suit or
22
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries that would be
required to be set forth in the International Prospectus other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the Company,
threatened against it or any of its subsidiaries before or by any federal, state
or other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding could have a Material Adverse Effect, other than as
set forth in the International Prospectus; (iv) the Company shall have complied
with all material agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date; and (v) the other
representations and warranties of the Company set forth in Section 1(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Date.
(g) The International Underwriters shall have received on the Closing Date
a letter dated the date hereof or the Closing Date, as the case may be, in form
and substance reasonably satisfactory to the International Underwriters, from
Ernst & Young, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the International
Prospectus.
(h) By the Closing Date, your counsel shall have been furnished with all
such documents (including any consents under any agreements to which the Company
is a party), certificates and opinions as they may reasonably request for the
purpose of enabling them to pass upon the issuance and sale of the International
Securities as contemplated in this Agreement and in Section 5(e) herein and in
order to evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the covenants
of the Company, or the fulfillment of any of the conditions herein; and all
proceedings taken by the Company at or prior to the Closing Date in connection
with the authorization, issuance and sale of the International Securities, and
by the Company at or prior to the Closing Date in connection with the
authorization and delivery of this Agreement, shall be reasonably satisfactory
in form and substance to you and to your counsel.
23
(i) Prior to the Closing Date, the Company shall have furnished to
Salomon Brothers Inc such further information, certificates and documents
as Salomon Brothers Inc may reasonably request.
(j) The Lock-Up Agreements executed by (i) each of the Company's
executive officers and directors listed in Schedule III hereto and (ii) by
each of OII Associates, L.P., OII Associates II, L.P. and KKR Partners II,
L.P. in favor of the International Underwriters relating to sales of shares
of Common Stock of the Company shall have been delivered to Salomon
Brothers Inc and shall be in full force and effect on the Closing Date.
(k) The closing of the purchase of the U.S. Underwritten Securities to
be issued and sold by the Company pursuant to the U.S. Underwriting
Agreement shall occur concurrently with and be a condition to the sale of
the International Securities as set forth in this Agreement.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in Section 6 herein. Notwithstanding any
such termination, the provisions of Sections 1(a) and 8 herein shall remain in
effect. Notice of such termination shall be given to the Company in writing or
by telephone confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
International Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
on the Closing Date.
6. REIMBURSEMENT OF INTERNATIONAL UNDERWRITERS' EXPENSES. If the
sale of the International Securities provided for herein is not consummated
because any condition to the obligations of the International Underwriters set
forth in Section 5 herein is not satisfied, because of any termination pursuant
to Section 10(a) herein or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
herein other than by reason of a default by any of the International
Underwriters, the Company will reimburse the International Underwriters
severally upon demand for all documented out-of-pocket expenses (including fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the International Securities.
24
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the International Underwriters herein contained, the Company
covenants with each International Underwriter as follows:
(a) To prepare the International Prospectus, including any amendment
or supplement thereto, in a form approved by the International Underwriters
and to file such International 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; to make no further amendment or any supplement to
the Registration Statement or to the International Prospectus except as
permitted herein;
(b) To furnish to each of Salomon Brothers Inc and its counsel,
without charge, one signed copy of the Registration Statement (including
exhibits thereto) and for delivery to each other International Underwriter
a conformed copy of the Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (d) below, as many copies of
the Preliminary International Prospectus and the International Prospectus
and any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(c) Before amending or supplementing the Registration Statement or the
International Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(d) If, during such period after the first date of the public offering
of the International Securities, as in the opinion of counsel for the
International Underwriters, the Preliminary International Prospectus or the
International Prospectus is required by law to be delivered in connection
with sales by an International Underwriter or a dealer, any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Preliminary
25
International Prospectus or the International Prospectus, as the case may
be, in order to make the statements therein, in the light of the
circumstances when the Preliminary International Prospectus or the
International Prospectus, as the case may be, is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the International
Underwriters, it is necessary to amend or supplement the Preliminary
International Prospectus or the International Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish,
at its own expense, to the International Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
International Securities may have been sold by you on behalf of the
International Underwriters and to any other dealers upon request, either
amendments or supplements to the Preliminary International Prospectus or
the International Prospectus, as the case may be, so that the statements
therein as so amended or supplemented will not, in the light of the
circumstances when the Preliminary International Prospectus or the
International Prospectus, as the case may be, is delivered to a purchaser,
be misleading or so that the Preliminary International Prospectus or the
International Prospectus, as amended or supplemented, as the case may be,
will comply with law.
(e) From the date of this Agreement, and for so long as a Preliminary
International Prospectus or a International Prospectus is required to be
delivered in connection with the sale of International Securities covered
by this Agreement, the Company will notify you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Preliminary International
Prospectus or the International Prospectus or any document to be filed
pursuant to the Exchange Act which will be incorporated by reference into
the Registration Statement, Preliminary International Prospectus or the
International Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Preliminary
International Prospectus or the International Prospectus, (iv) of any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Preliminary International Prospectus
or the International Prospectus or for additional information and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every commercially
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain, as soon as possible, the lifting thereof.
(f) The Company will comply to the best of its ability with the
Securities Act and the Exchange Act and the regulations thereunder so as to
permit the completion of the distribution of the International
26
Securities as contemplated in this Agreement and the International
Prospectus; and the Company, during the period when the Preliminary
International Prospectus and the International Prospectus is required to be
delivered under the Securities Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the Exchange Act within the time periods required under the Exchange Act.
(g) The Company will endeavor to qualify the International Securities
for offer and sale under the state securities or blue sky laws of such
jurisdictions as you shall reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the International Securities; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
International Securities have been qualified as above provided.
(h) With respect to each sale of International Securities, the Company
will make generally available to its security holders as soon as
practicable but in any event not later than 90 days after the close of the
period covered thereby a consolidated earnings statement for a twelve-month
period beginning after the effective date (as defined in Rule 158(c) under
the Securities Act) of the Registration Statement relating to such
International Securities, but not later than the first day of the Company's
fiscal quarter next following such effective date and that otherwise
satisfies the provisions of Section 11(a) of the Securities Act and the
regulations thereunder.
(i) The Company will use the proceeds received from the sale of the
International Securities in the manner specified in the International
Prospectus under the heading "Use of Proceeds."
(j) For a period of five years after the Closing Date, if so
requested, the Company will furnish to each of you copies of all annual
reports, quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated
by the Commission, and such other documents, reports and information as
shall be furnished by the Company to the holders of the
27
International Securities or to security holders of its respective publicly
issued securities generally.
(k) To pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement including all financial statements, schedules and
exhibits and the International Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery to you of
the International Securities; (iii) the fees and disbursements of the
Company's counsel and accountants; (iv) the qualification of the
International Securities under the state securities or blue sky laws in
accordance with the provisions of Section 6(g) herein, including filing
fees and the fees and disbursements of counsel for the International
Underwriters in connection therewith and in connection with the preparation
of the preliminary and final state securities laws or blue sky surveys (the
"Blue Sky Surveys") or any Legal Investment Memoranda; (v) the printing and
delivery to the International Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto
and of each Preliminary International Prospectus and the International
Prospectus and any amendments or supplements thereto; (vi) the printing and
delivery to the International Underwriters of copies of the Blue Sky
Surveys or any Legal Investment Memoranda; (vii) any fees charged by rating
agencies for the rating of the International Securities or the listing, if
any, of the International Securities on the NYSE; (viii) the filing fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. (the "NASD") made in connection
with the offering of the International Securities; and (ix) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors.
(l) The Company will arrange for the qualification of the
International Securities for sale under the laws of such jurisdictions as
the International Representative may designate, and will maintain such
qualifications in effect so long as required for the distribution of the
securities and will pay the fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering.
(m) For a period of 90 days after the date of this Agreement, the
Company will not offer, sell, announce its intention to sell, contract to
sell, pledge, hypothecate, grant any option to purchase or otherwise
dispose of, directly or indirectly, or file
28
with the Commission a registration statement under the Securities Act
(other than on Form S-8 relating to resales of securities as described in
the general instructions to Form S-8) relating to any shares of Common
Stock or securities convertible or exchangeable into or exercisable for any
shares of Common Stock, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of Salomon Brothers Inc, except (i) grants of employee stock
options and other awards pursuant to the terms of stock option plans in
effect on the date hereof or described in the International Prospectus,
(ii) sales and issuances of securities pursuant to the exercise of any such
options or awards or the exercise of any other stock options or awards
outstanding on the date hereof, (iii) the issuance and/or sale of Common
Stock pursuant to existing employee benefit plans of the Company, (iv) the
issuance and/or sale of Common Stock upon the exercise of the respective
exchange rights of the holders of the Company's Series A Exchangeable
Preferred Stock, par value $.01 per share, Series B Exchangeable Preferred
Stock, par value $.01 per share, and Series C Exchangeable Preferred
Stocks, par value 4.01 per share, and (v) the issuance and/or sale of
Common Stock upon the exercise of any of the Company's warrants or options
outstanding on the date hereof.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each International Underwriter, the directors,
officers and employees of each International Underwriter and each person who
controls any International Underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other United States
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the International Securities as originally filed or in any
amendment thereof, or in the Preliminary International Prospectus or in the
International Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action;
29
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Underwriter through the International Representative specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each International Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity to each International Underwriter, but only with
reference to written information relating to such International Underwriter
furnished to the Company by or on behalf of such International Underwriter
through the International Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any International Underwriter may
otherwise have. The Company acknowledges that the statements set forth in (a)
the first sentence of the last paragraph of text on the cover page of the
International Prospectus concerning the terms of the offering by the
International Underwriters, (b) the last paragraph on page S-2 of the
International Prospectus concerning stabilization and over-allotment by the
International Underwriters, and (c) the last three sentences of the second
paragraph, the sixth paragraph, the seventh paragraph, the eighth paragraph, the
ninth paragraph, the tenth paragraph, the eleventh paragraph, the twelfth
paragraph and the thirteenth paragraph of text under the caption "Underwriting"
in the International Prospectus, concerning the terms of the offering by the
International Underwriters in the International Prospectus constitutes the only
information furnished in writing by or on behalf of the several International
Underwriters for inclusion in any U.S. or International Preliminary Prospectus
or the International Prospectus, and you, as the International Representative,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
30
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the International Underwriters
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more
31
of the International Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the International Underwriters on the other from the offering of the
International Securities; PROVIDED, HOWEVER, that in no case shall any
International Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the International Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the International Securities purchased by such International
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the International
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company on
the one hand and of the International Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the International Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the International Prospectus.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or the
International Underwriters. The Company and the International Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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 8, each person who
controls an International Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of an International Underwriter shall have the same rights to contribution
as such International Underwriter, and each person who controls the Company
within the meaning of either the Securities Act or 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 the applicable terms and conditions of this
subparagraph (d).
9. SURVIVAL. The indemnity and contribution provisions contained in
Section 8 herein and the representations, warranties and other statements of the
32
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any International Underwriter or any
person controlling any International Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the Company and (c)
acceptance of and payment for any of the International Securities.
10. TERMINATION. Salomon Brothers International Limited, may
terminate this Agreement by notice to the Company, at any time at or prior to
the Closing Date (a) if there has been, since the respective dates as of which
information is given in the Registration Statement or the International
Prospectus, any Material Adverse Change, or any development involving a
prospective Material Adverse Change or (b) if there has occurred any new
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which on the financial markets in the United States is
such as to make it, in your judgment, impracticable to market the International
Securities or enforce contracts for the sale of the International Securities, or
(c) if trading in any securities of the Company has been suspended on any
exchange or in any over-the-counter market or by the Commission, or if trading
generally on the NYSE has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission or any other
governmental authority or (d) if a general moratorium on commercial banking
activities in New York State has been declared by either federal or New York
State authorities.
11. DEFAULT BY AN INTERNATIONAL UNDERWRITER. If any one or more
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or International Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining International Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of International Securities set forth opposite the
names of all the remaining International Underwriters) the International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event
that the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of International Securities
set forth in Schedule I hereto, the remaining International Underwriters
33
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securities,
this Agreement will terminate without liability to any nondefaulting
International Underwriter or the Company. In the event of a default by any
International Underwriter as set forth in this Section 11, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
International Representative shall determine in order that the required changes
in the Registration Statement and the International Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting International Underwriter of its liability, if any,
to the Company, and any nondefaulting International Underwriter for damages
occasioned by its default hereunder.
12. NOTICES. In all dealings hereunder, you shall act on behalf of
each of the International Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any International Underwriter made or given by Salomon Brothers Inc.
All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be given (and shall be deemed
to have been given upon receipt) by delivery in person, by cable, by telecopy,
ny telegram, by telex or by registered or certified mail (postage prepaid,
return receipt requested) to the applicable party at the addresses indicated
below:
(1) IF TO THE INTERNATIONAL UNDERWRITERS:
Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No.: (00 000) 000-0000
Attention: Equity Syndicate Desk
WITH A COPY TO:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
34
(2) IF TO THE COMPANY:
Xxxxx-Illinois, Inc.
One XxxXxxx
Xxxxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
General Counsel
WITH A COPY TO:
Kohlberg Kravis & Xxxxxxx & Co.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Partner
AND WITH A COPY TO:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section [8] herein, and no
other person will have any right or obligation hereunder.
14. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. TIME OF THE ESSENCE. Time shall be of the essence of this
Agreement.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
17. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several International Underwriters.
Very truly yours,
XXXXX-ILLINOIS, INC.
By: /S/ XXXXX X. XXX XXXXXX
-------------------------
Name: Xxxxx X. Xxx Xxxxxx
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
By: SALOMON BROTHERS INTERNATIONAL LIMITED
By: /S/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
For itself and the other
several International Underwriters named
in Schedule I to the foregoing Agreement.
SCHEDULE I
Number of
International Number of International Option
Underwritten Securities to be Purchased if
Securities to be Maximum International Option
International Underwriters Purchased Securities Exercised
-------------------------- ---------------- -------------------------------
Salomon Brothers
International Limited..... 491,670 73,755
Xxxxxxx Xxxxx
International............. 491,666 73,749
Xxxxxx Brothers International
(Europe).................. 491,666 73,749
Xxxxxxx Xxxxx
International............. 491,666 73,749
Xxxxxx Xxxxxxx & Co.
International Limited..... 491,666 73,749
PaineWebber International
(U.K.) Ltd................ 491,666 73,749
------- ------
Total.......................2,950,000 442,500
--------- -------
--------- -------
Schedule II
Upon the consummation of the Senior Note Offerings, 100% of the shares
of capital stock of each Significant Subsidiary will be, directly or indirectly,
owned by the Company free and clear of any material lien, except that the
Company owns approximately 79% of the outstanding shares of AVIR S.p.A.
SCHEDULE III
Executive Officers and Directors
Who Have Executed Lock-Up Agreements
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. XxxXxxxxxx
Xxxxxxx X. XxXxxxxx
Xxxx X. XxXxxxxx, Xx.
Xxxxxx XxXxxxx
Xxxxxxx X. Xxxxxxxxx
B. Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
R. Xxxxx Xxxxxxxx
Xxxxx X. Xxx Xxxxxx
Xxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
