Exhibit A
7,400,000 Shares
Crown Cork & Seal Company, Inc.
COMMON STOCK
($5.00 PAR VALUE)
U.S. UNDERWRITING AGREEMENT
October 24, 1996
Lazard Freres & Co. LLC
CS First Boston Corporation
Salomon Brothers Inc
c/o Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SECTION 1. Introductory. Compagnie Generale d'Industrie et de
Participations, a societe anonyme organized under the laws of the Republic of
France ("CGIP"), and Sofiservice, a societe anonyme organized under the laws of
the Republic of France and a wholly owned subsidiary of CGIP ("Sofiservice" and,
together with CGIP, the "Selling Stockholders"), propose to sell to the several
Underwriters named in Schedule I hereto (the "U.S. Underwriters"), for whom
Lazard Freres & Co. LLC, CS First Boston Corporation and Salomon Brothers Inc
are acting as representatives (the "U.S. Representatives"), an aggregate of
7,400,000 shares (the "U.S. Firm Shares") of Common Stock, par value $5.00 per
share (the "Common Stock"), of Crown Cork & Seal Company, Inc. (the "Company"),
each Selling Stockholder selling the amount set forth opposite such Selling
Stockholder's name in Schedule II hereto. CGIP also proposes to sell to the U.S.
Underwriters, upon the terms and conditions set forth in Section 4 hereof, up to
an additional 1,387,500 shares of Common Stock (the "Additional Shares"). The
U.S. Firm Shares and the Additional Shares are hereinafter sometimes
collectively referred to as the "U.S. Shares".
It is understood that the Company and the Selling Stockholders
are concurrently entering into an international underwriting agreement dated the
date hereof (the "International Underwriting Agreement") in which the Selling
Stockholders propose to sell to
the several Underwriters named therein (the "International Underwriters")
for whom Lazard Capital Markets, CS First Boston Limited and Salomon Brothers
International Limited are acting as representatives (the "International
Representatives") an aggregate of 1,850,000 shares (the "International Shares")
of the Company's Common Stock. The respective closings under this Agreement and
the International Underwriting Agreement are hereby expressly made conditional
on one another.
The U.S. Shares and the International Shares are herein
collectively referred to as the "Shares". The U.S. Underwriters and the
International Underwriters are herein collectively referred to as the
"Underwriters".
It is further understood that the U.S. Representatives on
behalf of the U.S. Underwriters and the International Representatives on behalf
of the International Underwriters have entered into an agreement of even date
herewith (the "Agreement Among U.S. and International Underwriters"),
contemplating the coordination of certain transactions among the U.S. and
International Underwriters and that, pursuant thereto and subject to the
conditions set forth therein, the U.S. Underwriters may purchase from or sell to
the International Underwriters a portion of the U.S. Shares and the
International Underwriters may purchase from or sell to the U.S. Underwriters a
portion of the International Shares. Any such purchases or sales shall be
governed by the Agreement Among U.S. and International Underwriters and not by
the terms of this Agreement.
It is further understood that the Company and the Selling
Stockholders are concurrently entering into an underwriting agreement dated the
date hereof (the "Preferred Underwriting Agreement") in which the Selling
Stockholders propose to sell to the several Underwriters named therein (the
"Preferred Underwriters") an aggregate of 3,000,000 shares (the "Preferred Firm
Shares") of the Company's 4.5% Convertible Preferred Stock, par value $41.8875
per share (the "Preferred Stock"). In addition, CGIP has agreed to sell to the
Preferred Underwriters, upon the terms and conditions set forth in the Preferred
Underwriting Agreement, up to an additional 450,000 shares of Preferred Stock
(the "Preferred Additional Shares" and, collectively with the Preferred Firm
Shares, the "Preferred Shares"). The respective closings under this Agreement
and the International Underwriting Agreement, on the one hand, and the Preferred
Underwriting Agreement, on the other hand, are not conditional on one another.
The Company and the Selling Stockholders hereby agree with the
U.S. Underwriters as follows (it being understood and agreed that the
obligations set forth herein are several in nature, unless expressly stated to
the contrary):
SECTION 2. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to, and agrees with, (i) the
several U.S. Underwriters and (ii) in the case of clauses (a), (b), (c), (j) and
(n) and the second sentence of clause (g) below only, the Selling Stockholders
(it being understood and agreed that such representations and warranties to the
Selling Stockholders are being made solely in connection with the sale of the
Shares under this Agreement and the International Underwriting Agreement and
subject to the last sentence of Section 9(a)), that:
(a) The Company meets the registrant requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on Form S-3 (File No. 333-12787), including
forms of prospectuses relating to the Shares, has been filed by the
Company pursuant to the Act with the Securities and Exchange Commission
(the "Commission"). The Company may have filed one or more amendments
thereto, including the related Preliminary Prospectuses (as defined
below), each of which (other than documents incorporated by reference
therein) has previously been furnished to you. The Company will file
with the Commission either (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement (including the forms of final prospectuses relating to the
Shares) or (ii) after effectiveness of such registration statement,
final prospectuses relating to the Shares in accordance with Rules 430A
and 424(b)(1) or (4) under the Act. In the case of clause (ii), the
Company has included or shall include in such registration statement,
as amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from such registration
statement when it becomes effective pursuant to Rule 430A ("Rule 430A
Information")) required by the Act and the rules and regulations
thereunder (the "Rules and Regulations") to be included in the final
prospectuses with respect to the Shares and the offering thereof. As
filed, such amendment and forms of final prospectuses, or such final
prospectuses, shall contain all Rule 430A Information, together with
all other such required information, with respect to the Shares and the
offering thereof, and, except to the extent you shall agree in writing
to a modification (which shall not be unreasonably withheld or
delayed), shall be in all substantive respects in the form furnished to
you prior to the execution of this Agreement or, to the extent not in
such form, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectuses) as the Company has advised the U.S. Representatives,
prior to the execution of this Agreement, will be included or made
therein. For purposes of this Agreement, "Effective Time" means the
time as of which such registration statement or the most recent
post-effective amendment thereto, if any, was or is declared effective
by the Commission and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is
filed. "Effective Date" means the date of the Effective Time. The
registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S.
prospectus relating to the U.S. Shares and the international prospectus
relating to the International Shares. The international prospectus is
identical to the U.S. prospectus, except the international prospectus
contains different front and back cover pages and different
descriptions of the plan of distribution (contained under the caption
"Underwriting" in each of the U.S. and international prospectus). Such
registration statement, as amended at the Effective Time, including
incorporated documents, exhibits and financial statements, and
including all Rule 430A Information, if any, and, any post-effective
amendment thereto that becomes effective prior to the Closing Date (as
defined below) is hereinafter referred to as the "Registration
Statement", and the U.S. prospectus relating to the U.S. Shares and the
international prospectus relating to the International Shares in the
forms first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or, if no such filing is
required, as included in the Registration Statement, are hereinafter
referred to as the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively as the "Prospectuses". Any
preliminary prospectus relating to the U.S. Shares or the International
Shares included in such Registration Statement or filed pursuant to
Rule 424(a) under the Act is hereinafter referred to as a "U.S.
Preliminary Prospectus" or an "International Preliminary Prospectus",
respectively, and collectively as "Preliminary Prospectuses". Any
reference herein to the Registration Statement, a Preliminary
Prospectus 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 Exchange Act of 1934
(the "Exchange Act") on or before the Effective Time of the
Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectuses, as the case may be, and references to information
being "included", "contained" or "set forth in" any such document (or
similar expressions) shall be similarly construed; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectuses shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Time of the
Registration Statement, or the issue date of any Preliminary Prospectus
or the Prospectuses, as the case may be, deemed to be incorporated
therein by reference.
(b) At the Effective Time, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 4), the Prospectuses (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act
and the Rules and Regulations; at the Effective Time, the Registration
Statement did not or will not include 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, at the Effective Time, the Prospectuses, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectuses (and any supplements thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply
to information contained in or omitted from the Registration Statement
or the Prospectuses (or any supplement thereto) in reliance upon and in
conformity with the Underwriters' Information or the Selling
Stockholders' Information (as defined in Section 9(a)).
(c) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose shall have been instituted or threatened
by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements
of the Act and the Rules and Regulations, and did not contain 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; except that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with the
Underwriters' Information or the Selling Stockholders' Information.
(d) The historical consolidated financial statements included
in the Registration Statement and the Prospectuses (and any amendment
or supplement thereto) present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations, the statements of their cash flows and the changes in their
financial position for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved
(except as described in the notes to such financial statements); and
the supporting schedules, if any, included in the Registration
Statement present fairly in all material respects the information
required to be stated therein. The pro forma financial statements
included in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto) have been prepared on a basis
consistent with such historical financial statements (except as
described in such pro forma financial statements), include all material
adjustments to the historical financial data required to reflect the
transactions to which pro forma effect is given, give effect to
assumptions made on a reasonable basis, and present fairly in all
material respects on a pro forma basis the estimated consolidated
financial position and results of operations of the Company and its
consolidated subsidiaries assuming that such transactions had occurred
on the date specified therein.
(e) There has not been sustained since the date of the latest
audited financial statements included in the Prospectuses any material
adverse change in the financial condition, results of operations or
business of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"), except as set forth in the Prospectuses.
(f) The Company and each of its subsidiaries have been duly
incorporated and are validly existing in good standing under the laws
of their respective
jurisdictions of organization with power and authority to own, lease
and operate their properties and conduct their businesses as described
in the Registration Statement and the Prospectuses; and each of them is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which it owns or leases
properties or in which the conduct of its business requires such
qualification, except to the extent that any such failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
(g) The Company has an authorized capitalization as set forth
in the Prospectuses, and all shares of capital stock of the Company
outstanding, including the Shares, have been duly authorized, are
validly issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectuses. The sale of the Shares is not subject to pre-emptive or
other similar rights or restrictions on transfer created by the Company
under the Company's articles of incorporation or bylaws, under
applicable law or under any agreement to which the Company is a party
or of which the Company has actual knowledge (other than those imposed
by the Act, the Rules and Regulations, foreign securities laws or state
securities or Blue Sky laws and other than restrictions on transfers
contained in that certain Shareholders Agreement, dated February 22,
1996, between the Company and CGIP (the "Shareholders Agreement") which
have been fully waived or satisfied); and the Shares are duly listed
and admitted for trading on the New York Stock Exchange (the "NYSE").
(h) All of the issued and outstanding capital stock of each
material subsidiary of the Company listed on Schedule III hereto has
been duly authorized and validly issued and is fully paid and
non-assessable, and, except as set forth in the Prospectuses, all the
issued and outstanding capital stock of each such material subsidiary
is owned, directly or through subsidiaries, by the Company, free and
clear of any pledge, lien, encumbrance, adverse claim or equity
(collectively, a "Lien"), except for any such Liens that would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) Neither the Company nor any of its subsidiaries is in
violation of its or any of their charters or by-laws or other
organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which it or any of them or their properties may be bound,
except any violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration,
filing or qualification by or on behalf of the Company or any of its
subsidiaries of or with any court or governmental authority or agency
or of the NYSE is required for the sale of
the Shares or the consummation of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except such as
may be required under the Act, the Rules and Regulations or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; and the execution and
delivery of this Agreement and the International Underwriting
Agreement, and the consummation of the transactions contemplated herein
and therein will not (i) conflict with or constitute a breach of any of
the terms or provisions of, or default under, or result in the creation
or imposition of any Lien upon any property or assets of the Company or
any of its subsidiaries pursuant to, any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
that is material to the Company and its subsidiaries taken as a whole,
(ii) result in any violation or breach of the provisions of the charter
or by-laws or other organizational documents of the Company or any of
its subsidiaries or (iii) result in any violation of any law,
administrative regulation or administrative or court decree or order
applicable to the Company, any of its material subsidiaries or their
respective property.
(k) The Company and its subsidiaries are in compliance with
all laws and regulations applicable to them and their respective
properties and possess all certificates, authorities or permits issued
by, and have made all filings with, the appropriate state, local,
Federal or foreign regulatory agencies or bodies necessary or desirable
to conduct the business now operated by them, except where
noncompliance with such laws or regulations or the failure to possess
or make the same would not, individually or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation, termination or modification of any such certificate,
authority, permit or filing, other than any such revocation,
termination or modification that would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Except as described in the Prospectuses, there are no
actions, suits or proceedings before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, contemplated or threatened against the Company or any
of its subsidiaries, or to which any of their respective properties is
subject, which, (i) if adversely determined, would, individually or in
the aggregate, result in any Material Adverse Effect or (ii) questions
the validity of this Agreement or any action taken or required to be
taken pursuant hereto.
(m) Each of the Company and its subsidiaries has good and
marketable title to all real and personal property owned by it, in each
case free and clear of any Lien, except (i) such as are referred to in
the Prospectuses or (ii) such as would not, individually or in the
aggregate, have a Material Adverse Effect; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect.
(n) This Agreement has been duly authorized,
executed and delivered by the Company.
(o) Other than the Shareholders Agreement, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities under the Registration Statement.
(p) Except as set forth in the Prospectuses under the
caption "Underwriting", neither the Company nor, to the Company's
knowledge, any of its officers or directors or any of their respective
affiliates is a member of, or is associated or affiliated with a
member of, the National Association of Securities Dealers, Inc.
"NASD").
SECTION 3. Representations, Warranties and Agreements of the
Selling Stockholders. Each Selling Stockholder, jointly and severally,
represents and warrants to, and agrees with, (i) the several U.S. Underwriters
and (ii) the Company (it being understood and agreed that such representations
and warranties to the Company are being made solely in connection with the sale
of the Shares under this Agreement and the International Underwriting Agreement
and subject to the last sentence of Section 9(b)), that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) Such Selling Stockholder has the legal right and power to
execute and deliver this Agreement and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder in the manner
provided in this Agreement and the International Underwriting
Agreement, and no such action will result in any violation or breach of
the provisions of the charter or by-laws or other organizational
documents of such Selling Stockholder or any agreement or other
instrument binding upon such Selling Stockholder (including the
restrictions on transfer contained in the Shareholders Agreement, which
have been fully waived or satisfied) or any law, administrative
regulation or administrative or court decree or order applicable to
such Selling Stockholder; and no consent, approval, authorization,
order, registration, filing or qualification of or with any court or
governmental authority or agency or of the NYSE is required for the
consummation of the transactions contemplated by this Agreement and the
International Underwriting Agreement in connection with the sale of the
Shares by such Selling Stockholder, except such as may be required
under the
Act, the Rules and Regulations or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(c) Such Selling Stockholder has, and will deliver to the
Underwriters upon payment therefor good and marketable title to the
Shares to be sold by such Selling Stockholder, free and clear of any
Lien.
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which 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.
(e) At the Effective Time, the Selling Stockholders'
Information contained in the Registration Statement did not or will not
include 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 in the Selling Stockholders' Information not
misleading; and, at the Effective Time, the Selling Stockholders'
Information contained in the Prospectuses, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Selling
Stockholders' Information contained in the Prospectuses (and any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements in the Selling Stockholders' Information, in the
light of the circumstances under which they were made, not misleading.
(f) There are no contracts, agreements or understandings
between the Selling Stockholders and any person that would give rise to
a valid claim against the Selling Stockholders or any Underwriter for a
brokerage commission, finder's fee or other like payment.
SECTION 4. Purchase, Sale and Delivery of U.S. Shares. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the U.S. Underwriters, and
each U.S. Underwriter agrees, severally and not jointly, to purchase from such
Selling Stockholder, at a purchase price of $44.64 per U.S. Share (the "purchase
price per U.S. Share"), the respective number of U.S. Firm Shares (subject to
adjustment by the U.S. Representatives to eliminate fractions) that bear the
same proportion to the number of U.S. Firm Shares to be sold by such Selling
Stockholder as the number of U.S. Firm Shares set forth opposite the name of
such U.S. Underwriter in Schedule I hereto bears to the total number of U.S.
Firm Shares.
The obligations of the Selling Stockholders hereunder to sell
the U.S. Firm Shares, and the obligations of the U.S. Underwriters to purchase
the U.S. Firm Shares, are
subject to the closing of the sale and purchase of the International Shares
pursuant to the International Underwriting Agreement.
CGIP hereby agrees to sell to the U.S. Underwriters and, on
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the U.S. Underwriters
shall have the right to purchase, severally and not jointly, from CGIP, pursuant
to an option to be exercised in the 30-day period commencing on the date of this
Agreement, up to 1,387,500 Additional Shares at the purchase price per U.S.
Share. Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the U.S. Firm Shares and
the International Shares. If any Additional Shares are to be purchased, each
U.S. Underwriter agrees, severally and not jointly, to purchase from CGIP that
proportion of the total number of Additional Shares (subject to adjustment by
the U.S. Representatives to eliminate fractions) to be purchased from CGIP as
the number of U.S. Firm Shares set forth opposite the name of such U.S.
Underwriter in Schedule I hereto bears to the total number of U.S. Firm Shares.
Each Selling Stockholder will deliver the U.S. Firm Shares to
be purchased by the U.S. Underwriters to the U.S. Representatives for the
accounts of the U.S. Underwriters, against payment of the purchase price
therefor by wire transfer of same day funds to an account specified in writing
by such Selling Stockholder. Payment for the U.S. Firm Shares shall be made at
the offices of Cravath, Swaine & Xxxxx at 10:00 A.M., New York Time, on October
30, 1996 or at such other place or time not later than seven full business days
thereafter as the U.S. Representatives and the Selling Stockholders determine
(the "Initial Closing Date").
CGIP will deliver the Additional Shares to be purchased by the
U.S. Underwriters to the U.S. Representatives for the accounts of the U.S.
Underwriters, against payment of the purchase price therefor by wire transfer of
same day funds to an account specified in writing by CGIP, at the offices of
Cravath, Swaine & Xxxxx on such date and at such time (the "Option Closing
Date"), as shall be specified in the notice from Lazard Freres & Co. LLC to CGIP
exercising the option to purchase the Additional Shares. The Option Closing Date
may be the same as the Initial Closing Date but shall in no event be earlier
than the Initial Closing Date nor earlier than two nor later than ten business
days after the giving of the notice hereinafter referred to. Such notice may be
given, by letter or by telecopy or other facsimile transmission or by telephone
(if subsequently confirmed in writing), to CGIP at any time within 30 days after
the date of this Agreement. The Option Closing Date may be varied by agreement
between the U.S. Representatives and CGIP. The Initial Closing Date and the
Option Closing Date are herein collectively referred to as the "Closing Date."
The certificates for all the U.S. Firm Shares and the
Additional Shares so to be delivered will be in such denominations and
registered in such names as the U.S. Representatives request two full business
days prior to the Initial Closing Date or the Option Closing Date, as the case
may be, and will be made available at the offices of Lazard Freres & Co. LLC,
New York, New York or, upon your request, through the facilities of The
Depository Trust Company, for checking and packaging at least one full business
day prior to the Initial Closing Date or the Option Closing Date, as the case
may be.
Each Selling Stockholder will not, without the prior written
consent of the U.S. Representatives, offer, sell, pledge or otherwise dispose
of, any shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock or any rights to
purchase or acquire such capital stock, for a period of one year after the date
of this Agreement; provided, however, that the foregoing restriction shall not
apply to (i) the sale of the Shares to be sold hereunder and under the
International Underwriting Agreement, (ii) the sale of the Preferred Shares to
be sold under the Preferred Underwriting Agreement, (iii) any conversion of
shares of Preferred Stock into shares of Common Stock pursuant to the terms of
the Preferred Stock and (iv) any disposition of any shares of Common Stock or
Preferred Stock pursuant to a bona fide pledge or grant of a security interest
to a major brokerage firm or financial institution to secure bona fide
indebtedness, or the sale of such shares upon foreclosure on such pledge,
provided that each purchaser of such shares upon foreclosure agrees to be bound
by the provisions of this paragraph.
SECTION 5. Offering by U.S. Underwriters. After the
Registration Statement becomes effective, the several U.S. Underwriters will
offer the U.S. Shares for sale to the public on the terms and conditions as set
forth in the U.S. Prospectus.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several U.S. Underwriters and the Selling Stockholders that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Prospectuses with
the Commission pursuant to and in accordance with subparagraph (1) (or,
if applicable, and with the U.S. Representatives' consent, subparagraph
(4)) of Rule 424(b) within the time period prescribed by such rule. The
Company will advise the U.S. Representatives promptly of any proposal
to amend or supplement the Registration Statement as filed, or the
Prospectuses, and will not effect such amendment or supplement or
filing without the U.S. Representatives' consent (which shall not be
unreasonably withheld or delayed). The Company will also advise the
U.S. Representatives promptly after the Company receives notice of the
effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution and delivery of this Agreement), of the
filing and effectiveness of any amendment or supplement to the
Registration Statement or the Prospectuses, and of the issuance by the
Commission of any stop order in respect of the Registration Statement
or of any order preventing or suspending the use of any Preliminary
Prospectus or any prospectus relating to the Shares or the initiation
of proceedings for any such purpose, of suspension of the qualification
of the Shares for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or of any
request by the Commission to amend or supplement the Registration
Statement or the Prospectuses or for additional
information and will use its best efforts to prevent the issuance of
any such stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or any prospectus relating to the Shares or
suspending any such qualification and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result
of which the Prospectuses as then amended or supplemented would include
an untrue statement of a material fact, or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectuses or the
Registration Statement to comply with the Act, the Rules and
Regulations or any other law, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 6, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will notify the U.S. Representatives and, upon their
request, prepare and furnish without charge to each U.S. Underwriter,
each Selling Stockholder (except as provided below) and to any dealer
in securities as many copies as the U.S. Representatives may from time
to time reasonably request, of amended Prospectuses or any supplement
to the Prospectuses complying with Section 10(a) of the Act which will
correct such statement or omission or effect such compliance, it being
understood and agreed that the Selling Stockholders will pay all costs
and expenses incident to the preparation, printing, filing and
distribution of any such amendment or supplement.
(c) The Company will make generally available to the Company's
security holders as soon as practicable, but in any event not later
than 18 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement that
satisfies the provisions of Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(d) The Company will deliver to each of the U.S.
Representatives as many conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits
filed therewith and documents incorporated therein by reference) and
copies of the Preliminary Prospectuses and the Prospectuses as the U.S.
Representatives may reasonably request and will also deliver to the
U.S. Representatives a conformed copy of the Registration Statement and
each amendment thereto (including exhibits filed therewith and
documents incorporated therein by reference) for each of the U.S.
Underwriters.
(e) The Company will take such action as the U.S.
Representatives may reasonably request, in cooperation with the U.S.
Representatives to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the U.S. Representatives may designate, and will
maintain such qualifications in effect for as long as may be required
for the
distribution of the Shares; provided, however, that in no event shall
the Company be obligated in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it shall not then be
qualified, or to execute a general consent to service of process in any
jurisdiction in which such a consent has not been previously filed, or
subject itself to taxation in any jurisdiction wherein it would not
otherwise be subject to tax but for the requirements of this paragraph.
The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Shares have been qualified
as above provided.
(f) The Company agrees that neither it nor any of its
directors or the principal executive officers set forth in Item 10 of
the Company's Annual Report on Form 10-K for the year ended December
31, 1995 will, without the prior written consent of the U.S.
Representatives, offer, sell or otherwise dispose of, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock or any rights to
purchase or acquire such capital stock, for a period of 90 days after
the date of this Agreement; provided, however, that the foregoing
restriction shall not apply to any issuances or sales (a) in connection
with stock option, savings, benefit or compensation plans or dividend
reinvestment plans in existence on the date of this Agreement or the
conversion or exchange of convertible or exchangeable securities of the
Company, (b) in connection with a merger or other combination with, or
exchange offer for shares of, or acquisition of assets of, another
entity, (c) required in the Company's judgment to prevent termination
of the Standstill Period (as defined in the Shareholders Agreement), or
(d) by such directors and officers of up to 300,000 shares of capital
stock in the aggregate; provided, further, that (i) in the case of
clauses (b), (c) and (d) above, the Company shall give the U.S.
Underwriters at least 2 business days' prior written notice of such
issuance or sale and (ii) in the case of clauses (b) and (c) above, the
recipients of any such securities shall agree to be bound by the
provisions of this paragraph.
SECTION 7. Conditions of the Obligations of the U.S.
Underwriters. The obligations of the several U.S. Underwriters to purchase and
pay for the U.S. Firm Shares on the Initial Closing Date will be subject (i) to
the provisions of Section 11 herein, (ii) in the case of representations and
warranties qualified as to materiality, to the accuracy of such representations
and warranties in all respects, and in the case of representations and
warranties not so qualified, to the accuracy of such representations and
warranties in all material respects, in each case on the part of the Company and
the Selling Stockholders herein as of the date hereof and as of the Initial
Closing Date with the same force and effect as if made as of that date, (iii) to
the accuracy of the statements of Company officers and Selling Stockholder
officers made in any certificates furnished pursuant to the provisions hereof,
(iv) to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder and (v) to the following additional conditions
precedent:
(a) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than (i) 6:00 p.m. New York City time on the date of
determination of the offering price, if such determination occurred at
or prior to 3:00 p.m. New York City time on such date or (ii) 12:00
noon New York City time on the business day following the day on which
the offering price was determined if such determination occurred after
3:00 p.m. New York City time on such date. If the Effective Time is
prior to the execution and delivery of this Agreement, the Company
shall have filed the Prospectuses with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 6(a) hereof.
In either case, prior to the Initial Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission; and the Company shall have
complied with all requests for additional information on the part of
the Commission to the U.S. Representatives' reasonable satisfaction.
(b) The Underwriters shall have received an opinion of Dechert
Price & Xxxxxx, counsel for the Company, dated the Initial Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; and the Company has the
corporate power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged
as described in the Prospectuses.
(ii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby do not (a) conflict with or result in a
violation of any of the provisions of the articles of
incorporation or bylaws of the Company, (b) conflict with or
violate in any material respect any Pennsylvania, New York or
United States Federal law, rule or regulation, or, to such
counsel's knowledge, any order, judgment or decree known to
such counsel that is applicable to the Company or by which
any property or asset of the Company or any of its
subsidiaries is or may be bound (other than Federal or state
securities or blue sky laws, other anti-fraud laws and
fraudulent transfer laws and bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, as
to which such counsel need not express any opinion) or (c) to
such counsel's knowledge, result in a material breach of any
of the terms or provisions of, or constitute a default under,
any material loan or credit agreement, indenture, deed of
trust, mortgage, note or other agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or by which any of them or any of its
properties or assets is or may be bound.
(iv) No consent, approval, authorization or other
action by or filing with any Pennsylvania, New York or United
States Federal governmental agency or body or Pennsylvania,
New York or United States Federal court having jurisdiction
over the Company or any of its properties is required to be
obtained by the Company in connection with the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except filings and
other actions required under the Act and the Rules and
Regulations and state securities and blue sky laws, as to
which such counsel need not express any opinion.
(v) The Company has an authorized capitalization as
set forth in the Prospectuses; the Shares have been duly and
validly authorized and have been duly and validly issued, and
are fully paid and nonassessable; the Shares conform in all
material respects to the description thereof in the
Prospectuses.
(vi) The Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, and, to the knowledge of such counsel, no stop
order has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The statements set forth or referred to in the
Prospectuses under the headings "Description of Capital
Stock--General", "Description of Capital Stock--Common Stock",
"Description of Capital Stock--Preferred Stock" and "Certain
United States Federal Tax Considerations for Non-U.S. Holders
of Capital Stock" and in the Registration Statement under Item
15, insofar as such statements constitute a summary of the
legal matters or documents referred to therein fairly present
the information called for with respect to such legal matters
or documents.
In rendering such opinion, such counsel may state that their
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the Commonwealth of
Pennsylvania.
Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the Initial Closing
Date to the effect that (i) the Registration Statement and the Prospectuses and
any further amendments or supplements thereto made by the Company prior to the
Initial Closing Date (other than the financial statements (including pro forma
financial statements and notes to financial statements or pro forma financial
statements) and related schedules and other financial, accounting or statistical
information included in or excluded from the Registration Statement or the
Prospectuses, as to which such counsel need express no belief) appear on their
face to be
appropriately responsive in all material respects to the requirements of
the Act and the Rules and Regulations and (ii) such counsel participated in
conferences with officers and representatives of the Company, Price Waterhouse
LLP, the Underwriters, the Selling Stockholders and Cravath, Swaine & Xxxxx in
connection with the preparation of the Registration Statement, and based on the
foregoing and without assuming responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or making any
independent check or verification thereof (and relying as to factual matters
upon the statements of officers and other representatives of the Company, the
Selling Stockholders and others), no facts have come to the attention of such
counsel which lead them to believe that (I) the Registration Statement, as of
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading (other than the information omitted
therefrom in reliance on Rule 430A), or (II) any of the Prospectuses as amended
or supplemented, as of its date and as of each Closing Date, contains any untrue
statement of a material fact or omits 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 were made, not misleading, except
that such counsel need not express a belief as to any financial statements
(including pro forma financial statements and notes to financial statements or
pro forma financial statements) and related schedules, and other financial,
accounting or statistical information included in or excluded from the
Registration Statement or the Prospectuses.
(c) The Underwriters shall also have received from Xxxxxxx X.
Xxxxxxxxxxxx, Executive Vice President, Secretary and General Counsel of the
Company, an opinion, dated the Initial Closing Date, to the effect that:
(i) Each of the Company and its material subsidiaries
listed on Schedule III hereto is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, with corporate power and
authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described
in the Registration Statement; and each of the Company and
such material subsidiaries is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership or leasing of its
property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be made by the Company for the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except such as have
been obtained or made under the Act and such as may be
required under state securities and blue sky laws.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby will not result in a material breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, rule, regulation or order of any
governmental agency or body of any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any material agreement or instrument to
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the articles of incorporation or bylaws of the
Company or any such subsidiary; and to the best of such
counsel's knowledge, neither the Company nor any of its
material subsidiaries is in violation of its articles or
incorporation or bylaws, or in material default under any
material agreement, indenture or instrument.
(iv) Except as disclosed in or incorporated by
reference in the Registration Statement, there is no action,
suit or proceeding which has been served upon the Company or
any of its subsidiaries or of which any of their properties or
assets is the subject that is now pending, or to such
counsel's knowledge, overtly threatened, against or affecting
the Company or any of its subsidiaries or any of their
properties or assets that, if adversely determined, would have
a material adverse effect on the Company or its subsidiaries,
taken as a whole; and such counsel is not aware of any
material contracts or other material documents or legal or
governmental proceedings which are required to be filed as
exhibits to the Registration Statement by the Act or the
Exchange Act which have not been so filed.
In rendering such opinion, such counsel may state that his
opinion is limited to matters governed by the Federal laws of the United States
of America and laws of the Commonwealth of Pennsylvania.
Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the Initial Closing
Date to the effect that (a) each document filed by the Company under the
Exchange Act and incorporated by reference in the Registration Statement and
each amendment or supplement thereto, as of their respective dates or as of the
date of any such amendment or supplement thereto, (other than the financial
statements (including pro forma financial statements and notes to financial
statements or pro forma financial statements) and related schedules and other
financial, accounting or statistical information included in or excluded from
such documents, as to which such counsel need not express an opinion) appear on
their face to be appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder and
(b) no facts have come to the attention of such counsel which lead him to
believe that (I) the Registration Statement, as of the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading (other than the
information omitted therefrom in reliance on Rule 430A), or (II) any of the
Prospectuses as amended or supplemented, as of its date and as of each Closing
Date, contains any untrue statement of a material fact or omits 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 were
made, not misleading, except that such counsel need not express a belief as to
any financial statements (including pro forma financial statements and notes to
financial statements or pro forma financial statements) and related schedules,
and other financial, accounting or statistical information included in or
excluded from the Registration Statement or the Prospectuses.
(d) You shall have received an opinion of Xxxxxxxx & Xxxxxxxx,
special counsel for the Selling Stockholders, dated the Initial Closing
Date, that:
(i) All regulatory consents, authorizations,
approvals and filings required to be made or obtained by the
Selling Stockholders under the Federal laws of the United
States and the laws of the State of New York for the sale and
delivery of the Shares by the Selling Stockholders to the
Underwriters have been obtained or made.
(ii) Insofar as New York law is concerned, upon
delivery of and payment for the Shares to be sold to the
Underwriters in the State of New York pursuant to this
Agreement, the Underwriters will have acquired the Shares free
of any adverse claim within the meaning of Section 8-302 of
the New York Uniform Commercial Code (the "Code").
(iii) The execution and delivery by the Selling
Stockholders of this Agreement and the sale by the Selling
Stockholders of the Shares in accordance with this Agreement
will not violate any existing Federal law of the United States
or law of the State of New York.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the United States
of America and laws of the State of New York.
(e) You shall have received an opinion of Michel Renault,
General Counsel of CGIP, dated the Initial Closing Date, that:
(i) This Agreement has been duly authorized, executed
and delivered on behalf of the Selling Stockholders.
(ii) The sale of the Shares to be sold by the Selling
Stockholders as contemplated by this Agreement and the
execution delivery and performance of this Agreement by the
Selling Stockholders will not conflict with or constitute a
breach of any of the terms or provisions of, or constitute a
default
under, any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument known
to such counsel to which such Selling Stockholder is a party
or by which it may be bound (including the restrictions
contained in the Shareholders Agreement, which have been fully
waived or satisfied), nor will such action result in any
violation or breach of the provisions of the statuts of such
Selling Stockholder or any law or administrative regulation or
administrative or court decree or order of any court or
governmental authority or agency known by such counsel to be
applicable to such Selling Stockholder.
(iii) No consent, approval, authorization, order,
filing, registration or qualification of or with any court or
governmental authority or agency is required for the sale of
the Shares by the Selling Stockholders as contemplated by this
Agreement (except such counsel need express no opinion as to
any necessary qualification under the securities laws of any
foreign country).
(iv) The Selling Stockholders have full right, power
and authority to sell, assign, transfer and deliver, or to
cause to be sold, assigned, transferred and delivered, the
Shares to be sold by the Selling Stockholders to the
Underwriters.
(v) The sale of the Shares as contemplated by this
Agreement is not subject to any contractual restrictions on
transfer, except the restrictions on transfers contained in
the Shareholders Agreement, which have been fully waived or
satisfied.
(vi) Upon delivery of the Shares to the Underwriters,
and payment therefor by the Underwriters pursuant to this
Agreement, good and valid title to the Shares, free and clear
of all liens, encumbrances, equities or claims has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may state that his
opinion is limited to matters governed by the laws of the Republic of France.
The foregoing opinion does not address compliance by the Underwriters with
foreign securities laws with respect to resales of the Shares in France.
(f) The Underwriters shall have received from Cravath, Swaine
& Xxxxx, counsel for the Underwriters, an opinion, dated the Initial
Closing Date, with respect to such matters as the U.S. Representatives
may reasonably request.
(g) The Underwriters shall have received from the President or
any Vice President and a principal financial or accounting officer of
the Company a certificate, dated the Initial Closing Date, in which
such officers shall state that, to the best of their knowledge and
after reasonable investigation, (i) the Registration Statement as of
the Effective Time, and the Prospectuses as of the date of any
filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and since the Effective
Time, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectuses; (ii) there has not been, since the respective dates as
of which information is given in the Registration Statement and the
Prospectuses, any change or event that would be likely to have a
Material Adverse Effect, whether or not arising in the ordinary course
of business; (iii) in the case of representations and warranties in
Section 2 qualified as to materiality, such representations and
warranties are true and correct in all respects, and in the case of
representations and warranties not so qualified, such representations
and warranties are true and correct in all material respects, in each
case on the part of the Company with the same force and effect as
though made on and as of the Initial Closing Date and the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Initial
Closing Date; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(h) The Underwriters shall have received from the Selling
Stockholders a certificate, signed by the President or any Vice
President and a principal financial or accounting officer of CGIP,
dated the Closing Date, in which such officers shall state that, to the
best of their knowledge and after reasonable investigation, (i) the
Selling Stockholders' Information contained in the Registration
Statement as of the Effective Time, or in any Prospectus as of the date
of any filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (ii) in the case of
representations and warranties in Section 3 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Selling
Stockholders with the same force and effect as though made on the
Initial Closing Date and the Selling Stockholders have complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Initial Closing Date.
(i) The Underwriters shall have received from Price Waterhouse
LLP, independent public accountants, two letters, the first dated the
date of this Agreement and the other dated the Initial Closing Date,
addressed to the Board of Directors of the Company, the Underwriters
and the Selling Stockholders (with conformed copies for each of the
Underwriters), substantially in the form of Annex A hereto with such
variations as are reasonably acceptable to the U.S.
Representatives.
(j) The Underwriters shall have received from Befec-Price
Waterhouse, independent public accountants, two letters, the first
dated the date of this Agreement and the other dated the Initial
Closing Date, addressed to the Board of Directors of the Company, the
Underwriters and the Selling Stockholders (with conformed copies for
each of the Underwriters), substantially in the form of Annex B hereto
with such variations as are reasonably acceptable to the U.S.
Representatives.
The several obligations of the U.S. Underwriters to purchase
the Additional Shares hereunder are subject to (i) the accuracy (A) in all
material respects of the representations and warranties of the Company and the
Selling Stockholders contained herein that are qualified as to materiality and
(B) in all respects of such representations and warranties that are not so
qualified, in each case as though made on and as of the Option Closing Date,
(ii) the performance by the Company and the Selling Stockholders of their
respective obligations hereunder, (iii) satisfaction on and as of the Option
Closing Date of the conditions set forth in subsections (a) to (j) of this
Section 7, inclusive (and, for purposes thereof, each reference therein to the
Initial Closing Date shall be deemed to refer to the Option Closing Date), and
(iv) the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 11.
SECTION 8. Payment of Expenses. Other than the fees and
expenses of the Company's counsel and accountants, the Selling Stockholders will
pay all costs, expenses, fees, disbursements and taxes incident to the sale of
the Shares contemplated hereby and in the International Underwriting Agreement,
including without limitation (i) the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), the Prospectuses, each Preliminary Prospectus and all amendments and
supplements to any of them prior to or during the period specified in Section
6(b), (ii) the printing, reproduction and distribution of this Agreement and the
International Underwriting Agreement, and all other underwriting and selling
group documents by mail, telex or other means, (iii) the registration with the
Commission of the Shares, (iv) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
and the preparation, printing and distribution of Preliminary and Supplemental
Blue Sky Memoranda and Legal Investment Survey (including the reasonable fees
and disbursements of the U.S. Underwriters' counsel relating to the foregoing),
(v) filing fees incurred in connection with the National Association of
Securities Dealers, Inc.'s review of the offering's underwriting terms and
arrangements, (vi) the fees and expenses of the Registrar and Transfer Agent for
the Shares and its counsel and (vii) the fees and expenses of the Selling
Stockholders' counsel and accountants.
If the sale of the U.S. Shares provided for herein is not
consummated because of the failure to satisfy any condition to the obligations
of the U.S. Underwriters, because of any breach of any representation, warranty
or covenant of the Company or the Selling Stockholders contained in this
Agreement, because of any termination pursuant to Section 11 hereof or because
of any refusal, failure or inability of the Company or the Selling Stockholders
to perform any agreement herein or comply with any provision hereof other than
by reason of a default by any U.S. Underwriter, the Selling Stockholders shall
reimburse the U.S. Underwriters for all of their reasonable out-of-pocket
expenses incurred in connection with marketing and preparing for the offering of
the Shares, including the reasonable fees and disbursements of counsel for the
U.S. Underwriters.
SECTION 9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
the U.S. Underwriters and the Selling Stockholders and each person, if
any, who controls any U.S. Underwriter or any Selling Stockholder
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) (including, without
limiting the foregoing, the reasonable legal and other expenses
incurred in connection with investigating or defending or preparing to
defend or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action, as such expenses are
incurred), insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the U.S. Prospectus or any U.S. Preliminary Prospectus, or
are caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except (i) the Company shall not be
liable to any U.S. Underwriter under the indemnity agreement in this
paragraph (a) with respect to any U.S. Preliminary Prospectus to the
extent that such losses, claims, damages, liabilities or expenses
result from the fact that such U.S. Underwriter sold Shares to a person
as to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the U.S. Prospectus or of the U.S.
Prospectus as then amended or supplemented in any case where such
delivery is required by the Act if the loss, claim, damage or liability
of such U.S. Underwriter results from an untrue statement or omission
of a material fact contained in the U.S. Preliminary Prospectus which
was corrected in the U.S. Prospectus or in the U.S. Prospectus as then
amended or supplemented if the Company had previously furnished copies
thereof to such U.S. Underwriter and (ii) insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with (x) written
information furnished to the Company by or on behalf of the U.S.
Underwriters specifically for use in the Registration Statement, the
U.S. Prospectus or any U.S. Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any U.S.
Underwriter consists of (A) the last paragraph of text on the cover
page of the U.S. Prospectus (and any U.S. Preliminary Prospectus)
concerning the terms of the offering by the U.S. Underwriters, (B) the
second and third paragraphs on page 3 of the U.S. Prospectus (and any
U.S. Preliminary Prospectus) concerning over-allotment and
stabilization by the U.S. Underwriters and exemptions from Rules 10b-6,
10b-7 and 10b-8 under the Exchange Act and (C) the text under the
caption "Underwriting" in the U.S. Prospectus (and any U.S. Preliminary
Prospectus) concerning the terms of the offering by the U.S.
Underwriters and the delivery of Shares pursuant thereto (collectively,
the "Underwriters' Information") or (y) written information furnished
to the Company by or on behalf of the Selling Stockholders specifically
for use in the Registration Statement, the U.S. Prospectus or any U.S.
Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Selling Stockholder consists of the
information under the caption "Selling Shareholders" in the U.S.
Prospectus (or any U.S. Preliminary Prospectus), other than in respect
of the Company's outstanding capitalization (collectively, the "Selling
Stockholders' Information"). This indemnity agreement will be in
addition to any liability which the Company may otherwise have to the
persons referred to above in this Section 9(a). Notwithstanding
anything to the contrary in this Agreement, the Company shall not be
liable to any Selling Stockholder under the indemnity agreement in this
paragraph (a) or for any breach of any representation or warranty of
the Company set forth in Section 2 with respect to the statements in
the U.S. Prospectus (or any U.S. Preliminary Prospectus) relating to
the terms and provisions of the Shareholders Agreement.
(b) The Selling Stockholders agree, jointly and severally, to
indemnify and hold harmless each of the U.S. Underwriters and each
person, if any, who controls any U.S. Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act and the
Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either such Section, from and against any and all losses,
claims, damages and liabilities (or actions in respect thereof)
(including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending
or preparing to defend or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action, as
such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the U.S. Prospectus or any U.S.
Preliminary Prospectus or are caused by any omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only in
each case with reference to the Selling Stockholders' Information;
provided, however, that the Selling Stockholders shall not be liable to
any U.S. Underwriter under the indemnity agreement in this paragraph
(b) with respect to any U.S. Preliminary Prospectus to the extent that
such losses, claims, damages, liabilities or expenses result solely
from the fact that such U.S. Underwriter sold Shares to a person as to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the U.S. Prospectus or of the U.S.
Prospectus as then amended or supplemented in any case where such
delivery is required by the Act if the loss, claim, damage or liability
of such U.S. Underwriter results from an untrue statement or omission
of a material fact contained in the U.S. Preliminary Prospectus which
was corrected in the U.S. Prospectus or in the U.S. Prospectus as then
amended or supplemented if the Company had previously furnished
copies thereof to such U.S. Underwriter. This indemnity agreement will
be in addition to any liability which the Selling Stockholders may
otherwise have to the persons referred to above in this Section 9(b).
Notwithstanding anything to the contrary in this Agreement, the
Selling Stockholders shall not be liable to the Company under the
indemnity agreement in this paragraph (b) or for any breach of any
representation or warranty of the Selling Stockholders set forth in
Section 3 with respect to the statements in the U.S. Prospectus (or
any U.S. Preliminary Prospectus) relating to the terms and provisions
of the Shareholders Agreement.
(c) Each U.S. Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Selling Stockholders,
the directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with investigating or
defending or preparing to defend or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action,
as such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the U.S. Prospectus or any U.S.
Preliminary Prospectus, or are caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only
with reference to the Underwriters' Information. This indemnity
agreement will be in addition to any liability which the U.S.
Underwriters may otherwise have to the persons referred to above in
this Section 9(c).
(d) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing; however, the omission to so notify
the indemnifying party shall relieve the indemnifying party from
liability under the three preceding paragraphs only to the extent
prejudiced thereby. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may desire, to assume
the defense thereof through counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation (unless such indemnified party reasonably objects to
such assumption on the grounds that there may be defenses available to
it which are different from or in addition to those available to such
indemnifying party in which event the indemnified party shall be
reimbursed by the indemnifying party for the reasonable expenses
incurred in connection with retaining separate legal counsel). No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any claim or pending or
threatened proceeding in respect of the indemnified party is or could
have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
(e) If the indemnification provided for in this Section 9 is
insufficient or unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses in such proportion as is
appropriate to reflect the relative fault of the Company, the Selling
Stockholders and the U.S. Underwriters 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 fault of the Company, the Selling
Stockholders and the U.S. Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Selling Stockholders or by the U.S. Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, each Selling Stockholder and each of the U.S.
Underwriters agree that it would not be just and equitable if
contribution pursuant to Section 9(e) were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in the
immediately preceding paragraph shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(e), in no event shall any
U.S. Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the U.S. Shares underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such U.S. Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The U.S. Underwriters' obligations to contribute
pursuant to Section 9(e) are several in proportion to the respective
number of U.S. Firm Shares set forth opposite their names in Schedule I
hereto and not joint.
(g) The Company, the Selling Stockholders and the U.S.
Underwriters agree that any indemnity provision contained in Section
5.5 of the Shareholders Agreement or any other agreement between the
Company on the one hand and the Selling Stockholders on the other shall
be superseded for all purposes by this Section 9 in respect of the
offer and sale of the Shares.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company or the
Selling Stockholders submitted pursuant hereto, including indemnity and
contribution agreements, shall remain operative and in full force and effect,
regardless of any investigation, or any statement as to the results thereof,
made by or on behalf of any U.S. Underwriter or any person controlling any U.S.
Underwriter or by or on behalf of the Company, its officers or directors or
controlling persons, or by any Selling Stockholder or any person controlling any
Selling Stockholder, and shall survive acceptance of and payment for the U.S.
Shares hereunder.
SECTION 11. Termination. This Agreement may be terminated for
any reason at any time prior to the delivery of and payment for the U.S. Shares
on the Initial Closing Date or the Option Closing Date, as the case may be, by
the U.S. Underwriters upon the giving of written notice by Lazard Freres & Co.
LLC of such termination to the Company and the Selling Stockholders, if prior to
such time (i) there has been, since the respective dates as of which information
is given in the Registration Statement and the U.S. Prospectus, any Material
Adverse Effect, whether or not arising in the ordinary course of business, (ii)
there has occurred any outbreak or escalation of major hostilities or other
national or international calamity or crisis or material adverse change in
existing national or international financial, political, economic or securities
market conditions, the effect of which is such as to make it, in the judgement
of Lazard Freres & Co. LLC, impracticable or inadvisable to market the Shares in
the manner contemplated in the Prospectuses or enforce contracts for the sale of
the Shares, or (iii) trading in the Common Stock of the Company has been
suspended by the Commission or a national securities exchange, or trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
a banking moratorium has been declared by either Federal or New York
authorities. In the event of any such termination, the provisions of Section 8,
the indemnity agreement and contribution provisions set forth in Section 9, and
the provisions of Section 15 shall remain in effect and, if the U.S.
Underwriters shall have
purchased any U.S. Shares on the Initial Closing Date prior to such termination,
then all representations and warranties of the Company and the Selling
Stockholders set forth in or made pursuant to this Agreement and all obligations
of the Company pursuant to Section 6 hereof shall survive such termination.
SECTION 12. Default of U.S. Underwriters. If, on the Initial
Closing Date or the Option Closing Date, as the case may be, any one or more of
the U.S. Underwriters shall fail or refuse to purchase U.S. Shares that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
U.S. Shares which such defaulting U.S. Underwriter or U.S. Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the U.S. Shares to be purchased on such date by all U.S. Underwriters,
the other U.S. Underwriters shall be obligated severally in the proportions that
the number of U.S. Firm Shares set forth opposite their respective names in
Schedule I bear to the aggregate number of U.S. Firm Shares set forth opposite
the names of all such non-defaulting U.S. Underwriters, or in such other
proportions as the U.S. Representatives may specify, to purchase the U.S. Shares
which such defaulting U.S. Underwriter or U.S. Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
U.S. Shares that any U.S. Underwriter has agreed to purchase pursuant to Section
4 be increased pursuant to this Section 12 by an amount in excess of one-ninth
of such number of U.S. Shares without the written consent of such U.S.
Underwriter. If, on the Initial Closing Date or the Option Closing Date, as the
case may be, any U.S. Underwriter or U.S. Underwriters shall fail or refuse to
purchase U.S. Shares and the aggregate number of U.S. Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of U.S.
Shares to be purchased on such date, and arrangements satisfactory to the U.S.
Representatives, the Company and the Selling Stockholders for the purchase of
such U.S. Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any nondefaulting U.S.
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be paid or reimbursed by the Company pursuant to Section 8 and the respective
obligations of the Company, the Selling Stockholders and the U.S. Underwriters
pursuant to Section 9; provided, however, that if the U.S. Underwriters shall
have purchased any U.S. Shares on the Initial Closing Date prior to such
termination, then all representations and warranties of the Company and the
Selling Stockholders set forth in or made pursuant to this Agreement and all
obligations of the Company pursuant to Section 6 hereof shall survive such
termination. In any such case either the U.S. Representatives or the Company
shall have the right to postpone the Initial Closing Date or the Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectuses or in any other documents or arrangements may be effected. As used
in this Agreement, the term "U.S. Underwriter" includes any person substituted
for a U.S. Underwriter under this Section. Any action taken under this paragraph
shall not relieve any defaulting U.S. Underwriter from liability in respect of
any default of such U.S. Underwriter under this Agreement.
SECTION 13. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
U.S. Underwriters shall be directed to the U.S. Representatives c/o Lazard
Freres & Co. LLC, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate
Department; notices to the Company shall be directed to it at Crown Cork & Seal
Company, Inc., 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000, facsimile transmission
no. (000) 000-0000, Attention: Xxxx X. Xxxxxxxxxx, Executive Vice President and
Chief Financial Officer, and Xxxxxxx X. Xxxxxxxxxxxx, Executive Vice President,
Secretary and General Counsel; and notices to the Selling Stockholders shall be
directed to Compagnie Generale d'Industrie et de Participations, 00 xxx
Xxxxxxxx, 00000 Xxxxx, Xxxxxx, Attention: Michel Renault, with a copy to
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, facsimile
transmission no. (000) 000-0000, Attention: Xxxxx X. Xxxxxx.
SECTION 14. Parties. This Agreement shall inure to the benefit
of and be binding upon the Company, its directors and officers who signed the
Registration Statement, the U.S. Underwriters, the Selling Stockholders, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of U.S. Shares from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 16. Counterparts. This Agreement may be executed 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign this Agreement and return to us seven counterparts
hereof.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.,
By /s/ Xxxxx X.X. Xxxxx
Name: Xxxxx X.X. Xxxxx
Title: Senior Vice President-
Finance and Treasurer
COMPAGNIE GENERALE D'INDUSTRIE
ET DE PARTICIPATIONS,
By /s/ Xxxxxx-Xxxxxxx Xxxxxxxxx
Name: Xxxxxx-Xxxxxxx Xxxxxxxxx
Title: Chairman and CEO
SOFISERVICE,
By /s/ Xxxxxx-Xxxxxxx Xxxxxxxxx
Name: Xxxxxx-Xxxxxxx Xxxxxxxxx
Title: Attorney-in-Fact
Confirmed and Accepted, as of the
date first above written:
LAZARD FRERES & CO. LLC
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
By: LAZARD FRERES & CO. LLC
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
Acting severally on behalf of themselves
and as U.S. Representatives
of the several U.S. Underwriters
named in Schedule I hereto.
Schedule I
----------
Number of U.S. Firm Shares
U.S. Underwriters to be Purchased
----------------- ---------------
Lazard Freres & Co. LLC.................................. 1,773,334
CS First Boston Corporation.............................. 1,773,333
Salomon Brothers Inc..................................... 1,773,333
Bear, Xxxxxxx & Co. Inc.................................. 110,000
Alex. Xxxxx & Sons Incorporated.......................... 110,000
Chase Securities Inc..................................... 110,000
Deutsche Xxxxxx Xxxxxxxx Inc............................. 110,000
Xxxxxx, Read & Co. Inc................................... 110,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation...... 110,000
Xxxxxxxxx & Xxxxx LLC.................................... 110,000
Xxxxxx Brothers Inc...................................... 110,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....... 110,000
X.X. Xxxxxx Securities Inc............................... 110,000
Xxxxxx Xxxxxxx & Co. Incorporated........................ 110,000
PaineWebber Incorporated................................. 110,000
Xxxxxxxx Wertheim & Co. Incorporated..................... 110,000
Societe Generale Securities Corp........................ 110,000
Xxxxx & Company Incorporated............................. 60,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc.............................. 60,000
Xxxxxxxxx & Company, Inc.. .............................. 60,000
Xxxxxx X. Xxxxx & Co., L.P............................... 60,000
Xxxxxx/Hunter Incorporated............................... 60,000
Pennsylvania Merchant Group Ltd.......................... 60,000
Pryor, McClendon, Counts & Co............................ 60,000
Xxxxxxx Xxxxx & Associates, Inc.......................... 60,000
Wheat First Butcher Singer............................... 60,000
------
Total.......................................... 7,400,000
=========
Schedule II
------------
Number of U.S. Firm
Selling Stockholder Shares to be Sold
------------------- -----------------
Compagnie Generale de'Industrie et
de Participations 5,794,458
Sofiservice 1,605,542
---------
Total 7,400,000
=========
Schedule III
-------------
Material Subsidiaries
---------------------
CONSTAR International Inc.
Crown Beverage Packaging, Inc.
