EXHIBIT 1.2
Execution Copy
Xxxxx-Illinois, Inc.
11,800,000 Shares
Common Stock
($.01 par value)
U.S. UNDERWRITING AGREEMENT
New York, New York
May 13, 1997
SALOMON BROTHERS INC
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
c/o SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx-Illinois, Inc., a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule I hereto (the "U.S.
Underwriters"), for whom you, Salomon Brothers Inc, are acting as representative
(the "U.S. Representative"), 11,800,000 shares of Common Stock, $.01 par value
("Common Stock") of the Company (the "U.S. Underwritten Securities"). The
Company also proposes to grant to the U.S. Underwriters an option to purchase up
to 1,770,000 additional shares of Common Stock (the "U.S. Option Securities";
the U.S. Option Securities, together with the U.S. Underwritten Securities,
being hereinafter called the "U.S. 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
the Preliminary U.S. Prospectus (as defined herein) pursuant to Rule 424(b)
under the Securities Act in accordance with Rule 424(b) under the Securities
Act.
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It is understood and agreed to by all the parties that the Company
is concurrently entering into an International Underwriting Agreement dated
the date hereof (the "International Underwriting Agreement") providing for
the sale by the Company of an aggregate of 2,950,000 shares of Common Stock
(said shares to be sold by the Company pursuant to the International
Underwriting Agreement being hereinafter called the "International
Underwritten Securities"), other than in the United States and Canada through
arrangements with certain underwriters outside the United States and Canada
(the "International Underwriters"), for whom Salomon Brothers International
Limited is acting as representative (the "International Representative"), and
providing for the grant to the International Underwriters of an option to
purchase from the Company 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" and the U.S. Securities, together with
the International Securities, being hereinafter called the "Securities").
Anything herein or therein to the contrary notwithstanding, the respective
closings under this Agreement and the International Underwriting Agreement
are hereby expressly made conditional upon one another. It is 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
U.S. Underwriters may purchase from the International Underwriters a portion
of the International Securities to be sold pursuant to the International
Underwriting Agreement and 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.
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 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
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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 statements 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 U.S. Prospectuses
or the U.S. Prospectuses, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary U.S. Prospectus or the U.S. Prospectus shall be
deemed to refer to and include the filing of any
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document under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of any Preliminary U.S. Prospectuses or the U.S.
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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
of you
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expressly for use in the Registration Statement or U.S. Prospectus.
(iv) The documents incorporated by reference in the Registration
Statement and U.S. 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 U.S. 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 U.S. 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 U.S. 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
U.S. Prospectus and the U.S. Prospectus under the heading "Unaudited Pro
Forma Consolidated Financial 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
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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 U.S. Prospectus or the U.S.
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 U.S. Prospectus and the U.S. 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 U.S. 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 U.S. 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 U.S.
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
have a Material Adverse Effect.
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(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 International 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 International 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 U.S. Prospectus, except as otherwise
stated therein, contemplated thereby or otherwise incorporated by reference
therein, there has not been (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
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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 U.S. 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 U.S. Securities.
(xvii) The issuance, sale and delivery of the U.S. 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 U.S. 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 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
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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, the valid
authorization, issuance, sale and delivery of the 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
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 U.S.
Prospectus and is not so disclosed, (B) except as disclosed in the U.S.
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 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 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 U.S.
Prospectus, including ordinary routine litigation incidental to its
business, would not have a Material Adverse Effect.
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(xx) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the U.S. 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 U.S. 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 U.S.
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, ruling or finding, would result in any Material
Adverse Change.
(xxiv) Except as disclosed in the Registration Statement and the
U.S. Prospectus, each of the Company and its subsidiaries is in material
compliance with all applicable existing federal, state, local and foreign
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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
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.
(xxix) The U.S. 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 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 U.S. Underwriter, and each U.S. Underwriter agrees,
severally and not jointly, to purchase from the Company, at
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a purchase price of $27.47 per share, the number of the U.S. Underwritten
Securities set forth opposite such U.S. 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 U.S. Underwriters to purchase, severally and not jointly,
up to an aggregate of 1,770,000 shares of U.S. Option Securities at the same
purchase price per share as the U.S. Underwriters shall pay for the U.S.
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the U.S. Underwritten Securities by the U.S.
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 U.S. Prospectus upon written or
telegraphic notice by the U.S. Representative to the Company setting forth the
number of shares of the U.S. Option Securities as to which the several U.S.
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the shares of U.S. Option Securities, and payment therefor,
shall be made as provided in Section 3 hereof. The number of shares of the U.S.
Option Securities to be purchased by each U.S. Underwriter shall be the same
percentage of the total number of shares of the U.S. Option Securities to be
purchased by the several U.S. Underwriters as such U.S. Underwriter is
purchasing of the U.S. Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. 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 U.S.
Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Company or as provided in Section
11 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the U.S. Securities shall be
made to the U.S. Representative for the respective accounts of the several U.S.
Underwriters against payment by the several U.S. Underwriters through the U.S.
Representative of the 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 First Company ("DTC"). Delivery of the U.S. Underwritten Securities
and the U.S. Option Securities shall be made at such location as the U.S.
Representative shall reasonably designate at least one business day in advance
of the Closing Date and payment
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for such U.S. Securities shall be made at the office of Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York, New York. Certificates for the U.S. Securities shall be
registered in such names and in such denominations as the U.S. Representative
may request not less than one full business day in advance of the Closing Date.
If the option to purchase the U.S. Option Securities provided for in
Section 2(b) hereof is exercised by the U.S. Underwriters after the business day
prior to the Closing Date, the Company will deliver (at the expense of the
Company) to the U.S. Representative, at 7 World Trade Center, New York, New
York, on the date specified by the U.S. Representative (which shall be three
business days after exercise of said option, the "Option Closing Date"),
delivery of the U.S. Option Securities shall be made to the U.S. Representative
for the respective accounts of the several U.S. Underwriters against payment by
the several U.S. Underwriters through the U.S. Representative of the 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 DTC. If settlement for the U.S. Option
Securities occurs after the Closing Date, the Company will deliver to the U.S.
Representative on the settlement date for the Option Securities, and the
obligation of the U.S. Underwriter to purchase the U.S. 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 International Underwriting
Agreement, and that the Option Closing Date, if any, shall occur simultaneously
with the "Option Closing Date" under the International Underwriting Agreement.
4. OFFERING BY U.S. UNDERWRITERS. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the U.S. Prospectus.
5. CONDITIONS TO THE U.S. UNDERWRITERS' OBLIGATIONS. The several
obligations of the U.S. Underwriters to purchase and pay for the U.S. 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:
14
(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 U.S. Underwriters a
certificate of the Company, signed by the Chairman of the Board or the
President or a Vice President and the Treasurer or 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 U.S. Prospectus, there
has been no Material Adverse Change.
(c) The U.S. 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:
15
(i) the Registration Statement and the U.S. 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 U.S. 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 U.S. 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 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 U.S. 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 U.S. Prospectus;
(iv) each of this Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(v) the U.S. Securities and the International
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.
16
(vi) the execution and delivery by the Company of, and the
issuance and sale of the U.S. 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 U.S. Prospectus Supplement under the caption
"Consolidated Capitalization," excluding long-term debt listed as
"Other," or (II) any court or administrative orders, writs, 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 U.S.
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 U.S. 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, insofar as such
statements constitute summaries of the documents referred to therein,
are accurate in all material respects; and the U.S. Securities conform
in all material respects to the description thereof in the U.S.
Prospectus; and
(ix) the Company is not an "investment company," as such
term is defined in the 1940 Act.
17
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 U.S. 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 U.S. Underwriters' representatives at which the contents of the
Registration Statement and the U.S. 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 U.S.
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 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
U.S. 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 U.S. 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
18
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 and to conduct its
business as described in the U.S. 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 U.S. 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 U.S. Securities and the International Securities to
be issued and sold by the Company pursuant to the U.S. Underwriting
Agreement and the International Underwriting
19
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 U.S. Securities and the International
Securities by the Company pursuant to, this Agreement and the
International 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 State 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 Ohio 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 U.S. 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 U.S. 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 U.S.
Prospectus, at the time it was filed with the Commission, complied as
to form in all material respects with
20
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 U.S. Underwriters'
representatives and counsel at which the contents of the Registration Statement
and the U.S. 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 U.S. Prospectus, during the course of such
participation 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 U.S.
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 U.S. 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 U.S. Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S. Underwriters,
dated the Closing Date, covering certain matters requested by the U.S.
Underwriters.
(f) At the Closing Date, (i) the Registration Statement and the U.S.
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
21
all material respects shall conform to the requirements of the Securities
Act and the regulations thereunder, and neither the Registration Statement
nor the U.S. 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 U.S. 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
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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. Securities as contemplated in this Agreement
and in Section 5(e) herein and in order to evidence the accuracy and
22
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 U.S. 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.
(i) The U.S. Securities shall have been duly authorized for listing on
the New York Stock Exchange (the "NYSE"), at or by the Closing Date,
subject only to official notice of issuance thereof and notice of a
satisfactory distribution of the U.S. Securities.
(j) 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.
(k) 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 U.S. 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.
(l) The closing of the purchase of the International Underwritten
Securities to be issued and sold by the Company pursuant to the
International Underwriting Agreement shall occur concurrently with and be a
condition to the closing of the sale of the U.S. 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 U.S.
Underwriters, at
23
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
6. REIMBURSEMENT OF U.S. UNDERWRITERS' EXPENSES. If the sale of the
U.S. Securities provided for herein is not consummated because any condition
to the obligations of the U.S. 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 U.S. Underwriters, the Company will
reimburse the U.S. 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 U.S. Securities.
7. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the U.S. Underwriters herein contained, the Company covenants with each
U.S. Underwriter as follows:
(a) To prepare the U.S. Prospectus, including any amendment or
supplement thereto, in a form approved by the U.S. Underwriters and to file
such U.S. 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 U.S. 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 U.S. 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 U.S. Prospectus and the U.S. 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
U.S. 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 U.S. Securities, as in
24
the opinion of counsel for the U.S. Underwriters, the Preliminary U.S.
Prospectus or the U.S. Prospectus is required by law to be delivered in
connection with sales by an U.S. 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 U.S. Prospectus or the U.S. Prospectus, as the
case may be, in order to make the statements therein, in the light of the
circumstances when the Preliminary U.S. Prospectus or the U.S. Prospectus,
as the case may be, is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the U.S. Underwriters, it is necessary to amend
or supplement the Preliminary U.S. Prospectus or the U.S. Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the U.S. Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to
which U.S. Securities may have been sold by you on behalf of the U.S.
Underwriters and to any other dealers upon request, either amendments or
supplements to the Preliminary U.S. Prospectus or the U.S. 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 U.S. Prospectus or the U.S. Prospectus, as the case may be, is
delivered to a purchaser, be misleading or so that the Preliminary U.S.
Prospectus or the U.S. 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
U.S. Prospectus or a U.S. Prospectus is required to be delivered in
connection with the sale of U.S. 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 U.S. Prospectus or the U.S. Prospectus or any
document to be filed pursuant to the Exchange Act which will be
incorporated by reference into the Registration Statement, Preliminary U.S.
Prospectus or the U.S. Prospectus, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Preliminary U.S. Prospectus or the U.S. Prospectus, (iv) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Preliminary U.S. Prospectus or the U.S.
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
25
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 U.S. Securities as
contemplated in this Agreement and the U.S. Prospectus; and the Company,
during the period when the Preliminary U.S. Prospectus and the U.S.
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 U.S. 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 U.S.
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 U.S. Securities have been qualified
as above provided.
(h) With respect to each sale of U.S. 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 U.S.
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
U.S. Securities in the manner specified in the U.S. Prospectus under the
heading "Use of Proceeds."
26
(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 U.S. 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 U.S. Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery to you of the U.S.
Securities; (iii) the fees and disbursements of the Company's counsel and
accountants; (iv) the qualification of the U.S. 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 U.S. 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 U.S. Underwriters in
quantities as hereinabove stated of copies of the Registration Statement
and all amendments thereto and of each Preliminary U.S. Prospectus and the
U.S. Prospectus and any amendments or supplements thereto; (vi) the
printing and delivery to the U.S. 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 U.S. Securities or the listing, if any, of
the U.S. 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 U.S. Securities; and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors.
(l) 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 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
27
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 U.S. 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 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 Stock, par value $.01 per share, to
exchange their shares of Preferred Stock into shares of Common Stock 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 U.S. Underwriter, the directors, officers and
employees of each U.S. Underwriter and each person who controls any U.S.
Underwriter within the meaning of either the U.S. 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 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 U.S. Securities as originally
filed or in any amendment thereof, or in the Preliminary U.S. Prospectus or the
U.S. 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; 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
28
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 U.S. Underwriter through the U.S. Representative specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each U.S. 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 from the Company to each U.S. Underwriter, but only with
reference to written information relating to such U.S. Underwriter furnished to
the Company by or on behalf of such U.S. Underwriter through the U.S.
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 U.S. Underwriter may otherwise have. The Company
acknowledges that the statements set forth in (i) the first sentence U.S. of the
last paragraph of text on the cover page of the U.S. Prospectus concerning the
terms of the offering by the U.S. Underwriters, (ii) the last paragraph on page
S-2 of the U.S. Prospectus, concerning stabilization and over-allotment by the
U.S. Underwriters and (iii) the third and fifth paragraphs of text under the
caption "U.S. Underwriters" in the U.S. Prospectus Supplement, concerning the
terms of the offering by the U.S. Underwriters in the U.S. Prospectus constitute
the only information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any Preliminary U.S. Prospectus or the U.S.
Prospectus, and you, as the U.S. 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 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
29
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 U.S. 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 of
the U.S. Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the U.S.
Underwriters from the offering of the U.S. Securities; PROVIDED, HOWEVER, that
in no case shall any U.S. Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the U.S. Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the U.S. Securities purchased by such U.S.
30
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the U.S.
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company
and of the U.S. Underwriters 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 U.S. 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 U.S. 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 U.S. Underwriters. The Company
and the U.S. 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 U.S. Underwriter within the
meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of a U.S. Underwriter shall have the same rights
to contribution as such U.S. 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 paragraph (d).
9. SURVIVAL. The indemnity and contribution provisions contained in
Section 8 herein and the representations, warranties and other statements of the
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 U.S. Underwriter or any person
controlling any U.S. 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 U.S. Securities.
10. TERMINATION. Salomon Brothers Inc may terminate this Agreement by
notice to the Company, at any time at or prior to the Closing Date (a) if there
has been,
31
since the respective dates as of which information is given in the Registration
Statement or the U.S. 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 U.S. Securities or enforce contracts for the sale of the U.S. 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 A U.S. UNDERWRITER. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining U.S. Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of U.S. Securities set forth opposite their names
in Schedule I hereto bears to the aggregate amount of U.S. Securities set forth
opposite the names of all the remaining U.S. Underwriters) the U.S. Securities
which the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of U.S.
Securities which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of U.S. Securities
set forth in Schedule I hereto, the remaining U.S. Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the U.S. Securities, and if such nondefaulting U.S. Underwriters do not purchase
all the U.S. Securities, this Agreement will terminate without liability to any
nondefaulting U.S. Underwriter or the Company. In the event of a default by any
U.S. Underwriter as set forth in this Section 11, the Closing Date shall be
postponed for such period, not exceeding seven days, as the U.S. Representative
shall determine in order that the required changes in the Registration Statement
and the U.S. Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting U.S.
Underwriter of its liability, if any, to the Company and any nondefaulting U.S.
Underwriter for damages occasioned by its default hereunder.
32
12. NOTICES. In all dealings hereunder, you shall act on behalf of
each of the U.S. Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any U.S.
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:
(a) IF TO THE U.S. UNDERWRITERS:
Salomon Brothers Inc
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (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.
(b) 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
33
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.
34
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 U.S. 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 INC
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
By: SALOMON BROTHERS INC
By: /S/ XXXXXX XXXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
For itself and the other
several U.S. Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Number of U.S Number of U.S. Option
Underwritten Securities to be Purchased
Securities to be if Maximum U.S. Option
U.S. Underwriters Purchased Securities Exercised
----------------- ----------------- --------------------------
Salomon Brothers Inc........... 1,966,670 295,005
Xxxxxxx, Xxxxx & Co............ 1,966,666 294,999
Xxxxxx Brothers Inc............ 1,966,666 294,999
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated............ 1,966,666 294,999
Xxxxxx Xxxxxxx & Co.
Incorporated.................. 1,966,666 294,999
PaineWebber Incorporated........ 1,966,666 294,999
---------- ----------
Total........................... 11,800,000 1,770,000
---------- ----------
---------- ----------
Schedule II
Upon the consummation of the Senior Note Offerings (as defined in the
U.S. Prospectus), 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
