Exhibit 1
69,750,000 REGISTERED COMMON SHARES
ALCON, INC.
UNDERWRITING AGREEMENT
March 20, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Alcon, Inc., a corporation incorporated under the laws of
Switzerland (the "COMPANY"), has issued to Credit Suisse First Boston, Zurich,
Switzerland, a banking institution qualified to do business under the laws of
Switzerland ("CSFB ZURICH"), on behalf of the several Underwriters named in
Schedule A hereto (the "UNDERWRITERS"), an aggregate of 69,750,000 shares (the
"FIRM SECURITIES") of its registered common shares, par value CHF 0.20 per share
(the "SECURITIES"), in exchange for the payment of amounts by CSFB Zurich
pursuant to a Nominal Amount Deposit and Subscription Agreement dated March 15,
2002 (the "SUBSCRIPTION AGREEMENT") among the Company, CSFB Zurich, Nestle S.A.,
a corporation incorporated under the laws of Switzerland (the "PARENT"), and
Credit Suisse First Boston Corporation for subsequent transfer to the
Underwriters for offer and placement or sale by them upon payment by them of
further amounts as described in Section 3 below. The Company also proposes to
issue and sell to CSFB Zurich, on behalf and at the option of the Underwriters,
in exchange for the payment of amounts by CSFB Zurich pursuant to the
Subscription Agreement and for subsequent transfer to the Underwriters for offer
and placement or sale by them upon payment by them of further amounts, an
aggregate of not more than an additional 6,975,000 Securities (the "OPTIONAL
SECURITIES") as set forth below. The Firm Securities and the Optional Securities
are herein collectively called the "OFFERED SECURITIES". As part of the offering
contemplated by this Agreement, Credit Suisse First Boston Corporation (the
"DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement up to 3,487,500 Securities for sale to the
Company's directors, officers, employees and other parties associated with the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM").
The Firm Securities to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not subscribed for by the end of the business day on which this
Agreement is executed
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will be offered to the public by the Underwriters as set forth in the
Prospectus. The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-83286) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "COMMISSION") and either (i)
has been declared effective under the Securities Act of 1933, as amended
(the "ACT"), and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "INITIAL REGISTRATION STATEMENT") has been declared
effective, either (i) an additional registration statement ("ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have been
filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under
the Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered under
the Act pursuant to the initial registration statement and, if applicable,
the additional registration statement or (ii) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant to
such Rule and upon such filing the Offered Securities will all have been
duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company does
not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representatives
that it proposes to file one, "EFFECTIVE TIME" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and each individually as a "REGISTRATION
STATEMENT". The form
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of prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) on the date of this Agreement, each of the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement, the
Additional Registration Statement conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case of
the Prospectus, in the light of the circumstances under which they were
made), and no Additional Registration Statement has been or will be filed.
The two preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereof.
(c) The Company has been duly incorporated and is validly existing
under the laws of Switzerland, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good
standing would not result in a material adverse effect on the condition
(financial or other), business, properties, business prospects or results
of operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(d) Each subsidiary of the Company that is a "significant
subsidiary" (as defined in Rule 1-02(w) of Regulation S-X under the Act)
has been duly incorporated and is an existing corporation in good standing
(if applicable) under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each such subsidiary of the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or leasing of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified or in good standing would not
result in a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the
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Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects. The subsidiaries listed on Exhibit 21.1 to the
Initial Registration Statement are the only significant subsidiaries of
the Company.
(e) The Offered Securities, all other outstanding shares of
capital stock and the conditional capital of the Company conform to the
descriptions thereof contained in the Prospectus; the Offered Securities
and all other outstanding capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined below),
such Offered Securities will have been, validly issued, fully paid and
nonassessable; and the shareholders of the Company have no preemptive or
other similar rights with respect to the Securities, except such as have
been validly complied with, waived or have lapsed prior to the date
hereof.
(g) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(h) The Offered Securities have been approved for listing on the
New York Stock Exchange subject only to final notice of issuance.
(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act.
(j) Except as disclosed in the Prospectus, under current laws and
regulations of Switzerland and any political subdivision thereof, all
dividends and other distributions declared and payable on the Offered
Securities and paid by the Company to the holder thereof in Swiss francs
may be converted into any other convertible currency and freely
transferred out of Switzerland, and all such payments made to holders
thereof or therein who are non-residents of Switzerland under Swiss tax
laws and regulations will not be subject to income, withholding or other
taxes under laws and regulations of Switzerland or any political
subdivision or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or deduction in
Switzerland or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in Switzerland or any political subdivision or taxing
authority thereof or therein.
(k) This Agreement is in proper legal form under the laws of
Switzerland for the enforcement thereof in Switzerland against the
Company; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in
Switzerland or any political subdivision thereof that it be filed or
recorded or enrolled with any court or authority in Switzerland or any
political subdivision thereof or that any stamp, registration or similar
tax be paid in Switzerland or any political subdivision thereof other than
Swiss stamp tax.
(l) There are no limitations under the current laws and
regulations of Switzerland and any political subdivision thereof on the
rights of holders of Securities to hold or vote or transfer their
respective securities, and no approvals (other than any approval by the
shareholders or board of directors of the Company) are currently required
in Switzerland (including any foreign exchange or foreign currency
approvals) in order for the Company to pay dividends declared by the
Company to the holders of Securities.
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(m) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Association, charter or by-laws, as
applicable, 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 or credit 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 subsidiary is
subject except for such defaults that would not result in a Material
Adverse Effect.
(n) The execution, delivery and performance of this Agreement, the
Subscription Agreement and the Separation Agreement dated February 22,
2002 (the "SEPARATION AGREEMENT") between the Company and the Parent, the
issuance and sale of the Offered Securities and the consummation of the
transactions herein and therein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their respective properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, which breach, violation or default
would result in a Material Adverse Effect or have a material adverse
effect on the transactions contemplated herein and therein, or (ii) the
articles of association or organizational regulations of the Company or
the organizational documents of any such subsidiary.
(o) The Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by this Agreement; and
this Agreement has been duly authorized, executed and delivered by the
Company.
(p) Each of the Separation Agreement and the Subscription
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery by each other
party thereto, constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles
and to Swiss law principles on abuse of rights (Rechtsmissbranch).
(q) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would affect the value thereof or interfere
with the use made or to be made thereof by them, except such as would not
individually or in the aggregate have a Material Adverse Effect; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(r) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies, including, without limitation, the U.S. Food and Drug
Administration (the "FDA") necessary to conduct the business now operated
by them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(s) To the best of the Company's knowledge, except as disclosed in
the Prospectus, there are no rulemaking or similar proceedings before the
FDA or the U.S. Patent and Trademark Office or any similar entity in any
other jurisdiction which affect or involve the Company or any of its
subsidiaries or any of the processes or products which the Prospectus
discloses the Company or
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any of its subsidiaries has developed, is developing or proposes to
develop or uses or proposes to use which, if the subject of an action
unfavorable to the Company, could have a Material Adverse Effect.
(t) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess, have the right to use or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(v) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which would lead to
such a claim.
(w) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are, to the Company's knowledge, threatened.
(x) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial positions of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting principles
in the United States ("U.S. GAAP"), applied on a consistent basis and the
assumptions used in preparing the pro forma financial statements included
in each Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts.
(y) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event that would
be likely to result in a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectus, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
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(z) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(aa) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which it is
engaged, except for insurance policies the absence of which would not
result in a Material Adverse Effect; and except as described in the
Prospectus, neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for and neither the
Company nor any of its subsidiaries has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have a
Material Adverse Effect.
(bb) The books, records and accounts of the Company and its
subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
the operations of, the Company and its subsidiaries. The Company and its
subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with U.S. GAAP, and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has not made, and, to the knowledge of the
Company, no employee or agent of the Company has made, any payment of the
Company's funds or received or retained any funds in violation of any
applicable law, regulation or rule.
(cc) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand, and
any director, officer, shareholder, customer, supplier or any of them on
the other hand, which is required by the Act or the applicable published
Rules and Regulations thereunder to be described in the Registration
Statement or the Prospectus and which is not so described or is not
described as required.
(dd) Except as set forth or contemplated in the Prospectus, there
is no outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any shares of the
capital stock of the Company or any subsidiary or any security convertible
into, or exercisable or exchangeable for, such stock.
(ee) Neither the Company or any of its subsidiaries, nor, to the
best of the Company's knowledge after due inquiry, any director, officer,
employee, agent or other person acting on behalf of the Company or any of
its subsidiaries has, in the course of his or her actions for, or on
behalf of, the Company or any of its subsidiaries, (A) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity or made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds, or (B) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or
made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ff) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended, and intends to continue to manage its
business so as to avoid PFIC status to the extent consistent with its
other business goals.
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(gg) There are no persons with registration rights or other similar
rights to have securities registered pursuant to the Registration
Statement or, except for the registration rights granted to the Parent as
contemplated by the Separation Agreement, otherwise registered by the
Company under the Act.
(hh) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company or the Parent any loans or advances to such subsidiary or from
transferring title to any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company except (i) as described in
or contemplated by the Prospectus or (ii) for the effects of the corporate
laws, tax laws and monetary policies of the jurisdiction of such
subsidiary.
(ii) Except as described in the Prospectus, no ad valorem stamp
duty, stamp tax, stamp duty reserve tax or issue, documentary,
certification or other similar tax imposed by any government department or
other taxing authority of or in Switzerland, and no other issuer or
transfer tax or duty, is payable in connection with (i) the issuance of
the Offered Securities, (ii) the sale and transfer of Offered Securities
to or for the respective accounts of the Underwriters, including, without
limitation, under the Subscription Agreement, or (iii) the sale and
delivery of Offered Securities by the Underwriters to those purchasing the
Offered Securities from the Underwriters.
(jj) The Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions
in which the Prospectus or any preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program.
(kk) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities law and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the United
States.
3. Purchase, Sale and Delivery of Offered Securities. The Company has
issued the Firm Securities to CSFB Zurich pursuant to the terms of the
Subscription Agreement for subsequent transfer to the Underwriters, and the
Underwriters agree, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, severally and not jointly, to purchase from the Company and accept
delivery from CSFB Zurich for placement or sale, at a purchase price of $____
per share ("OFFER PRICE"), the respective numbers of Firm Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
Payment of an amount ("PURCHASE PRICE"), equal to (i) the total number of
Firm Securities purchased by the Underwriters multiplied by the Offer Price less
(ii) the U.S. dollar equivalent of CHF 0.20 multiplied by the number of Firm
Securities (based on the midpoint of the bid and asked conversion rates of Swiss
francs to U.S. dollars as displayed on Reuters page FXFX at 11:00 A.M., London
time, on the business day immediately following the date of this Agreement),
which amount has been previously paid by CSFB Zurich pursuant to the
Subscription Agreement, in Federal (same day) funds by official bank check or
checks or wire transfer to an account designated by the Company and acceptable
to the Representatives will be made at the office of Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, against delivery of the Firm Shares by
CSFB Zurich to Credit Suisse First Boston Corporation's account with The
Depository Trust Company at 9:00 A.M., New York time, on __________, 2002, or at
such other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities
Exchange
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Act of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering.
In addition, upon written notice from Credit Suisse First Boston
Corporation (after consultation with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated) given to the Company from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at a price per Security equal to the
Offer Price. The Company agrees to issue to CSFB Zurich pursuant to the terms of
the Subscription Agreement, for subsequent transfer to the Underwriters, the
number of Optional Securities specified in such notice and the Underwriters
agree, severally and not jointly, to purchase such Optional Securities. Such
Optional Securities shall be purchased for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite such
Underwriter's name in Schedule A hereto bears to the total number of Firm
Securities (subject to adjustment by Credit Suisse First Boston Corporation to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be issued, sold or delivered unless the
Firm Securities previously have been, or simultaneously are, issued, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time (but in no event more than twice) and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by Credit Suisse First Boston Corporation to the Company.
Each time for the delivery by CSFB Zurich of, and payment by the
Underwriters for, the Optional Securities, being herein referred to as an
"OPTIONAL CLOSING DATE", which may be the First Closing Date (the First Closing
Date and each Optional Closing Date, if any, being sometimes referred to as a
"CLOSING DATE"), shall be determined by Credit Suisse First Boston Corporation
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to CSFB Zurich
prior to such Optional Closing Date pursuant to the terms of the Subscription
Agreement, for subsequent transfer to the several Underwriters. Payment of an
amount ("OPTION PURCHASE PRICE"), equal to (i) the total number of Optional
Securities purchased by the Underwriters multiplied by the Offer Price less (ii)
the U.S. dollar equivalent of CHF 0.20 multiplied by the number of Optional
Securities being purchased (based on the midpoint of the bid and asked
conversion rates of Swiss francs to U.S. dollars as displayed on Reuters page
FXFX at 11:00 A.M., London time, on the business day next preceding such
Optional Closing Date) which amount shall have been paid by CSFB Zurich pursuant
to the Subscription Agreement, in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank designated by the
Company and acceptable to the Representatives will be made at the above office
of Shearman & Sterling against delivery of the Optional Securities by CSFB
Zurich to Credit Suisse First Boston Corporation's account with The Depository
Trust Company.
Credit Suisse First Boston Corporation hereby undertakes, on behalf of its
affiliate CSFB Zurich, to deliver on each Closing Date to the Underwriters in
accordance with this Agreement any Securities delivered by the Company to CSFB
Zurich pursuant to the terms of this Agreement and the Subscription Agreement.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representatives, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
9
The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and delivery,
the Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by the
Representatives.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
the Representatives' consent; and the Company will also advise the
Representatives promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify the Representatives of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
holders of its Securities an earnings statement covering a period of at
least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 thereunder. For the purpose of the preceding
sentence, "AVAILABILITY DATE" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the 180th
day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (with three of each Registration Statement being
signed and including all exhibits), each related preliminary prospectus,
and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements
to such documents, in each case in such quantities as the Representatives
request. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as soon
as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
10
(f) The Company will use its reasonable best efforts to arrange
for the qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution;
provided that the Company will not be required to qualify to do business
in any jurisdiction in which it is not now qualified or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now subject to such service of process.
(g) During the period ending the earlier of (i) five years
hereafter and (ii) the date the Company electronically files reports with
the Commission under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), through the Commission's XXXXX system (provided that the
Company continues so to file electronically), the Company will furnish to
the Representatives and, upon request, to each of the other Underwriters,
as soon as practicable after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will furnish
to the Representatives (x) as soon as available, a copy of each report of
the Company filed with the Commission under the Exchange Act or mailed to
shareholders and any proxy materials of the Company mailed to
shareholders, and (y) from time to time, such other information concerning
the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as the Representatives designate and the
printing of memoranda relating thereto, for the filing fee incident to the
review by the National Association of Securities Dealers, Inc. (the
"NASD") of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(i) The Company will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Company is compelled
by law to deduct or withhold such taxes, duties or charges. In that event,
the Company shall pay such additional amounts as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
(j) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
the Representatives, except for grants of employee stock options, stock
appreciation rights and restricted shares pursuant to the terms of a plan
in effect on the date hereof, issuances of Securities pursuant to the
exercise of such options or the exercise of any other employee stock
options outstanding on the date hereof.
(k) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
the effectiveness of the Registration Statement. The Designated
Underwriter will notify the Company of the Participants whose Directed
Shares will need to be so restricted. The Company
11
will direct the transfer agent for the Securities to place stop transfer
restrictions upon such Directed Shares for such period of time.
(l) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the underwriters in connection with the Directed Share
Program.
(m) The Company will comply with all applicable securities and
other applicable laws, rules and regulations in each foreign jurisdiction
in which the Directed Shares are offered in connection with the Directed
Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, in form and
substance satisfactory to the Representative, dated the date of delivery
thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), from KPMG LLP confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, substantially in
the form of Exhibit A hereto.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by the Representatives. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
the Representatives. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or Swiss financial or economic
conditions
12
or currency exchange rates or exchange controls as would, in the judgment
of the Representatives, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal, New York or
Swiss authorities; (vi) any major disruption of settlements of securities
or clearance services in the United States or (vii) any attack on, or
outbreak or escalation of hostilities involving, the United States or
Switzerland, any declaration of war by Congress or any other national or
international calamity or emergency involving the United States or
Switzerland if, in the judgment of the Representatives, the effect of any
such attack, outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Cravath, Swaine & Xxxxx, U.S. counsel for the Company, in
form and substance satisfactory to the Representatives and substantially
in the form of Exhibit B hereto. In rendering such opinion, Cravath,
Swaine & Xxxxx may relay as to the incorporation of the Company and all
other matters governed by Swiss law upon the opinion of Homburger
Rechtsanwalte referred to in Section 6(g) of this Agreement.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Xxxxxx, Esq., Vice President, Associate General
Counsel of the Company, in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit C hereto.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx Xxxxxxxx, Esq., Vice President, Associate General
Counsel of the Company, in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit D hereto.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Homburger Rechtsanwalte, Swiss counsel retained for such
purpose by the Company, in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit E hereto
(h) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special patent
counsel for the Company, in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit F hereto.
(i) The Representatives shall have received an opinion, dated such
Closing Date, of Debevoise & Xxxxxxxx, special trademark counsel for the
Company, in form and in substance satisfactory to the Representatives and
substantially in the form of Exhibit G hereto.
(j) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxxx & Xxxxxxx, special U.S. food and drug law
counsel for the Company, in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit H hereto.
(k) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the Registration Statements, the
Prospectus and other related matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, Shearman & Sterling may rely as to the
incorporation of the Company and all other matters governed by Swiss law
upon the opinion of Homburger Rechtsanwalte referred to above.
(l) The Representatives shall have received a certificate, dated
such Closing Date, of the President and a financial or accounting officer
of the Company in which such officers, to the best
13
of their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the dates
of the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(m) The Representatives shall have received a certificate, dated
such Closing Date, of Xxxxxxx Xxxxxxxxx, Vice President, Regulatory
Affairs of Alcon Research, Ltd., in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit I hereto.
(n) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(o) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters in the form of Exhibit J hereto, from
each of the Parent and the persons listed in Schedule B hereto.
(p) Each of the Subscription Agreement, the Separation Agreement
and the letter agreement addressed to the Representatives from the Parent
in the form of Exhibit K hereto shall be in full force and effect on such
Closing Date.
(q) The Offered Securities to be purchased by the Underwriters on
such Closing Date shall have been issued and delivered to CSFB Zurich in
accordance with the terms of the Subscription Agreement.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case of the
Prospectus, in the light of the circumstances under which they were made), and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
14
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or 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 (in the case of the
Prospectus, in the light of the circumstances under which they were made); (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant agreed to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of the Prospectus, in the light of the circumstances
under which they were made), in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the names of the Underwriters and allocations of
Offered Securities to those Underwriters contained in the table below the first
paragraph under the caption "Underwriting", the concession and reallowance
figures appearing in the fourth paragraph under the caption "Underwriting" and
the information contained in the seventh, thirteenth, sixteenth, seventeenth and
last paragraphs under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section 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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last
15
paragraph in Section 7 (a) hereof in respect of such action or proceeding, then
in addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for the Designated Underwriter
for the defense of any losses, claims, damages and liabilities arising out of
the Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act. No indemnifying party shall (i) without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (x) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (y) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party
or (ii) be liable for any settlement of any such action effected without its
prior written consent, which consent shall not unreasonably be withheld or
delayed.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such 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 Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of
16
the Company who has signed a Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate number of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder,
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
Credit Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Transactions Advisory Group, and to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: __________, or if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ______________ , Attention:
______________, with a copy to Nestle S.A., xx. Xxxxxx 00, 0000 Xxxxx,
Xxxxxxxxxxx, Attention: ______________, provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
17
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
The obligation of the Company in respect of any sum due to any Underwriter
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
such Underwriter of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter hereunder, such Underwriter agrees to
pay to the Company an amount equal to the excess of the dollars so purchased
over the sum originally due to such Underwriter hereunder.
18
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
ALCON, INC.
By..............................
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By.................................
Name:
Title:
By XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By.................................
Name:
Title:
19
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation ............
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .............................
Xxxxxxx, Sachs & Co. ..............................
X.X. Xxxxxx Securities Inc. .......................
Xxxxxxx Xxxxx Barney Inc. .........................
Banc of America Securities LLC ....................
Xxxxxx Brothers Inc. ..............................
Xxxxxx Xxxxxxx & Co. Incorporated .................
XX Xxxxx Securities Corporation ...................
UBS Warburg LLC ...................................
----------
Total............................ 69,750,000
==========
SCHEDULE B
Xxxxxxx X.X. Xxxx
Xxxxxx-Xxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxx-Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx-Xxxxxx
Xxxxx Xxxxxxxx
Xx. Xxxxxxxx X. Xxxxxxxxxxxxx
Xxxxxx Xxxxxxx
Xx. Xxxxx X. Cash
Xxxxxx X. Xxxxx, Xx.
Xxxxxxxx X.X. Xx Xxxx
Dr. G. Xxxxx Xxxx
Xx. Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx, Xx.
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
EXHIBIT A
FORM OF COMFORT LETTER
TO BE DELIVERED BY KPMG LLP
Exhibit A-1
EXHIBIT B
FORM OF OPINION TO BE DELIVERED
BY CRAVATH, SWAINE & XXXXX
Exhibit B-1
EXHIBIT C
FORM OF OPINION TO BE DELIVERED BY
XXXXXXXX XXXXXX, ESQ.
Exhibit C-1
EXHIBIT D
FORM OF OPINION TO BE DELIVERED BY
XXXXXX XXXXXXXX, ESQ.
Exhibit D-1
EXHIBIT E
FORM OF OPINION TO BE DELIVERED
BY HOMBURGER RECHTSANWALTE
Exhibit E-1
EXHIBIT F
FORM OF OPINION TO BE DELIVERED BY
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
Exhibit F-1
EXHIBIT G
FORM OF OPINION TO BE DELIVERED BY
DEBEVOISE & XXXXXXXX
Exhibit G-1
EXHIBIT H
FORM OF OPINION TO BE DELIVERED BY
XXXXXXXXX & XXXXXXX
Exhibit H-1
EXHIBIT I
FORM OF CERTIFICATE OF XXXXXXX XXXXXXXXX
CERTIFICATE
I, Xxxxxxx Xxxxxxxxx, Vice President, Regulatory Affairs of Alcon
Research, Ltd. ("Alcon Research"), a subsidiary of Alcon, Inc., a corporation
incorporated under the laws of Switzerland (the "Company"), pursuant to Section
6(m) of the Underwriting Agreement dated March [20], 2002 (the "Underwriting
Agreement"), among the Company, and Credit Suisse First Boston Corporation,
Xxxxxxx Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as
Representatives of the Several Underwriters named therein, DO HEREBY CERTIFY
that:
(i) I am the Vice President, Regulatory Affairs of Alcon
Research, which is the subsidiary of the Company responsible for
regulatory affairs and compliance for the Company and its
subsidiaries, and as such am knowledgeable in the conduct of the
operations of the Company and its subsidiaries as they relate to the
FDC Act, the Fair Packaging and Labeling Act and the U.S. Controlled
Substances Act, and the regulations promulgated under those acts
relating to the Company and its subsidiaries (collectively, the
"Applicable Statutes and Regulations");
(ii) I have no reason to believe that the current business of
the Company and its subsidiaries is not being conducted in material
compliance with currently applicable requirements under the
Applicable Statutes and Regulations as of the date of the Prospectus
and as of the date hereof or that the Company or any of its
subsidiaries is currently considering taking action that would
result in withdrawal, other than any voluntary withdrawal, from
marketing of any of the products currently marketed by the Company
or its subsidiaries; and
(iii) I have no reason to believe that there are any
rulemaking or similar proceedings before the U.S. Food and Drug
Administration that affect the Company or any of its subsidiaries or
any of the products disclosed in the Prospectus as a product which
the Company or its subsidiaries has developed, is developing or
proposes to develop or uses or proposes to use which, if the subject
of an action unfavorable to the Company or its subsidiaries, could
have a Material Adverse Effect.
Capitalized terms used herein without definition have the respective
meanings assigned to them in the Underwriting Agreement.
IN WITNESS WHEREOF, I have executed this Certificate on this __th day of
______ 2002.
By
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President, Regulatory -
Affairs of Alcon Research, Ltd.,
a subsidiary of Alcon, Inc.
Exhibit I-1
EXHIBIT J
FORM OF LOCKUP LETTER
__________, 2002
Alcon, Inc.
Xxxxx 00
X.X. Xxx 00
0000 Xxxxxxxxx, Xxxxxxxxxxx
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in the establishment of a public market for the Common Shares, par value CHF
0.20 per share, (the "SECURITIES") of Alcon, Inc., and any successor (by merger
or otherwise) thereto, (the "COMPANY"), the undersigned hereby agrees that for a
period of 180 days after the public offering date set forth in the final
prospectus used to sell the Securities (the "PUBLIC OFFERING DATE") pursuant to
the Underwriting Agreement, to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "REPRESENTATIVES"). In addition, the
undersigned agrees that, without the prior written consent of the
Representatives, it will not, during the period commencing on the date hereof
and ending 180 days after the Public Offering Date, make any demand for or
exercise any right with respect to, the registration of any Securities or any
security convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market or in the issuer directed share program will
not be subject to this Agreement. A transfer of Securities to a family member,
trust or heirs may be made (by operation of law or otherwise), provided the
transferee agrees to be bound in writing by the terms of this Agreement.
Exhibit J-1
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before April 15, 2002.
Very truly yours,
..................................
[Name]
Exhibit J-2
EXHIBIT K
FORM OF AGREEMENT BETWEEN
NESTLE S.A. AND THE UNDERWRITERS
[Nestle letterhead]
___________, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
The undersigned (the "PARENT") understands that Credit Suisse First
Boston Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(together, the "REPRESENTATIVES") and others propose to enter into an
underwriting agreement (the "UNDERWRITING AGREEMENT") dated the date hereof with
Alcon, Inc., a corporation incorporated under the laws of Switzerland (the
"COMPANY"), providing for the offering (the "OFFERING") by the several
underwriters, including the Representatives and such others named in Schedule A
to the Underwriting Agreement (the "UNDERWRITERS"), of the Company's registered
common shares, par value CHF 0.20 per share. The Company is a subsidiary of the
Parent. This Letter Agreement is hereafter referred to herein as the
"AGREEMENT." Capitalized terms used herein and not otherwise defined herein have
the meaning ascribed to such terms in the Underwriting Agreement.
1. Representations and Warranties of the Parent. To induce the
Underwriters to participate in the Offering, the Parent represents and warrants
to and agrees with each of the Underwriters that:
(a) The execution, delivery and performance of the
Subscription Agreement and the Separation Agreement, the issuance and
sale of the Offered Securities and the consummation of the transactions
therein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under (i) any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Parent
or any agreement or instrument to which the Parent is a party or by
which the Parent is bound or to which any of the properties of the
Parent is subject which breach, violation or default would individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business, properties, business prospects or
results of operations of the Parent and its subsidiaries taken as a
whole, or (ii) the articles of association or organizational
regulations of the Parent.
(b) Each of the Separation Agreement and the Subscription
Agreement has been duly authorized, executed and delivered by the
Parent and, assuming due authorization, execution and delivery by the
other parties thereto constitutes a valid and legally binding agreement
of the Parent, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
general equity principles and to Swiss law principles on abuse of
rights (Rechtsmissbranch).
(c) To the best of the Parent's knowledge after due inquiry,
there are no pending actions, suits or proceedings against or affecting
the Parent, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Parent or any of its
subsidiaries, would adversely affect the ability of the Parent to
perform its obligations under the Subscription Agreement or the
Separation Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are, to the Parent's knowledge, threatened.
(d) The sections of the Prospectus under the captions "Sole
Shareholder" and "Arrangements Between Nestle and our Company" have
been reviewed by the Parent and do not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made.
2. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law. The Parent hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in the City of New
York in any suit or proceeding arising out of or relating to this Agreement.
Very truly yours,
NESTLE S.A.
By _____________________________________
Name:
Title:
