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S&C Draft of April 22, 1998
Exhibit 1.1(b)
________ SHARES
XXXXX INC.
COMMON STOCK
[DRAFT] SUBSCRIPTION AGREEMENT
London, England
May , 1998
To: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXX XXXXXX INC.
XXXXXX XXXXXXXX & CO., LIMITED
[OTHER MANAGERS]
c/o: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
1. Introductory. Xxxxx Inc., a Delaware corporation ("Company"),
proposes to issue and sell ("International Offering") shares of its Common
Stock, par value $.01 per share ("Securities"), and the stockholders listed in
Schedule A hereto ("Selling Stockholders") propose severally to sell an
aggregate of outstanding shares of securities (together, "International Firm
Securities") to the several managers named in Schedule B hereto ("Managers").
It is understood that the Company is concurrently entering into an
Underwriting Agreement, dated the date hereof ("Underwriting Agreement"), with
certain United States underwriters listed in Schedule B thereto (the "U.S.
Underwriters"), for whom Credit Suisse First Boston Corporation ("CSFBC"), Xxxxx
Xxxxxx Inc. and Deutsche Xxxxxx Xxxxxxxx Inc. acting as representatives (the
"U.S. Representatives"), relating to the concurrent offering and sale of shares
of Securities ("U.S. Firm Securities") in the United States and Canada ("U.S.
Offering").
In addition, Xxxxx X. Xxxxxxx and X. Xxxxxxx & Co. K.G., Selling
Stockholders propose to sell (i) to the U.S. Underwriters, at the option of the
U.S. Underwriters, an aggregate of not more than additional shares of Securities
("U.S. Optional Securities") and (ii) to the Managers, at the option of the
Managers, an aggregate of not more than additional shares of Securities
("International Optional Securities"). The U.S. Firm Securities and the U.S.
Optional Securities are hereinafter called the "U.S. Securities"; the
International Firm Securities and the International Optional Securities are
hereinafter called the "International Securities"; the U.S. Firm Securities and
the International Firm Securities are hereinafter called the "Firm Securities";
the U.S. Optional Securities and the International Optional Securities are
hereinafter called the "Optional Securities". The U.S. Securities and the
International Securities are collectively referred to as the "Offered
Securities". To provide for the coordination of their activities, the U.S.
Underwriters and the Managers have entered into an Agreement Between U.S.
Underwriters and
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Managers which permits them, among other things, to sell the Offered Securities
to each other for purposes of resale.
2. Representations and Warranties of the Company and the Selling
Stockholders. A. The Company represents and warrants to, and agrees with, the
several Managers that:
(a) A registration statement (No. 333- ) relating to the
Offered Securities, including a form of prospectus relating to the U.S.
Securities, has been filed with the Securities and Exchange Commission
("Commission") and either (i) has been declared effective under the
Securities Act of 1933 ("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 (A) an additional
registration statement (the "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 (B) 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 CSFBL 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
CSFBL 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
CSFBL 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, if any,
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 hereinafter referred to
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collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the U.S.
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 the Registration Statement, are
hereinafter referred to as the "U.S. Prospectus", and the form of
prospectus relating to the International Securities, which is identical
to the U.S. Prospectus and the form of prospectus relating to the
International Securities, which is identical to the U.S. Prospectus
except for the outside front cover page, the inside front cover page,
the outside back cover page and the text under the captions
"Underwriting" and "Subscription and Sale" in the U.S. Prospectus and
the form of prospectus relating to the International Securities,
respectively (copies of such pages and text having been heretofore
delivered to CSFBL on behalf of the Managers) and the German
translation thereof, are hereinafter referred to as and the
"International Prospectus", and the U.S. Prospectus and the
International Prospectus are hereinafter collectively referred to as
the "Prospectuses". 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, 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 each
conforms, and at the time of filing of the U.S. 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 U.S. Prospectus is
included, each Registration Statement and the U.S. Prospectus will
conform, in all respects to the requirements of the Act and the Rules
and Regulations, and none of such documents, nor the International
Prospectus, 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 each of the
Prospectuses will conform in all respects to the requirements of the
Act and the Rules and Regulations, none 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, 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
either of the Prospectuses based upon written information furnished to
the Company by any Manager through CSFBL or by any U.S. Underwriter
through the U.S. 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 and Section 7(b) of the Underwriting
Agreement.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectuses; 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
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to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated
or organized and is an existing corporation or other form of
organization, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or organization, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectuses; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation or
entity 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 to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; 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 Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) The Offered Securities and all other outstanding shares of
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 and the Underwriting Agreement on each Closing Date (as
defined below), such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectuses; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(f) Except as disclosed in the Prospectuses, 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
Manager or U.S. Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(g) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(h) The Offered Securities have been approved for listing on
the New York Stock Exchange and the Frankfurt Stock Exchange subject to
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
or the Underwriting Agreement in connection with the issuance and sale
of the Offered Securities to be sold by the Company, except such as
have been obtained and made under the Act and such as may be required
under state securities laws.
(j) The execution, delivery and performance of this Agreement
and the Underwriting Agreement, and the issuance and sale of the
Offered Securities to be sold by the Company will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, 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 properties, or any agreement or instrument to which the
Company or any such subsidiary is a party
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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 that
is material to the Company and its subsidiaries, taken as a whole or
the charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities to be sold by the Company as contemplated by this
Agreement and the Underwriting Agreement, respectively.
(k) This Agreement and the Underwriting Agreement have been
duly authorized, executed and delivered by the Company.
(l) Except as disclosed in the Prospectuses, the Company and
its subsidiaries have good and marketable title to all material real
properties and all other material properties and assets owned by them,
in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectuses, the Company and its subsidiaries hold any material 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.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies 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 on the Company and its subsidiaries taken as a whole.
(n) 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 on the Company and its
subsidiaries taken as a whole.
(o) The Company and its subsidiaries own, possess 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 on the
Company and its subsidiaries taken as a whole.
(p) Except as disclosed in the Prospectuses, 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 on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(q) Except as disclosed in the Prospectuses, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective
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properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement or the
Underwriting Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(r) The financial statements included in each Registration
Statement and the Prospectuses present fairly the financial position 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
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(s) Except as disclosed in the Prospectuses, since the date of
the latest audited financial statements included in the Prospectuses
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, and, except as
disclosed in or contemplated by the Prospectuses, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(t) 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 Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
B. Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Managers that:
(a) Such Selling Stockholder has and on each Closing Date (as
defined below) will have valid and unencumbered title to the Offered
Securities (or security entitlement thereto) to be delivered by such
Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and the Underwriting Agreement
and to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Managers and Underwriters will
acquire valid and unencumbered title to the Offered Securities (or
security entitlement thereto) to be delivered by such Selling
Stockholder on such Closing Date.
(b) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Manager for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(c) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained and made under the Act
and such as may be required under state securities laws.
X. Xxxxx X. Xxxxxxx represents and warrants to, and agrees
with, the Several Managers that:
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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 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, 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 each
conforms, and at the time of filing of each of the Prospectuses
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and none 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 each of the Prospectuses will conform in all respects to the
requirements of the Act and the Rules and Regulations, none 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. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or either of the Prospectuses based upon written
information furnished to the Company by any Manager through CSFBL or by
any U.S. Underwriter through the U.S. Representatives specifically for
use therein, it being understood and agreed that the only such
information is that described as such in Section 7 and Section 7(b) of
the Underwriting Agreement.
X. Xxxxx X. Xxxxxxx, on behalf of the Murmann family and
affiliated entities, represents and warrants to, and agrees with the several
Underwriters, for the benefit of the holders from time to time of the Securities
that they will not cause the Company and the limited partners (Stille
Gesellschafter) to amend the limited partnership (Stille Gesellschaft) agreement
with Xxxxx- Sundstrand GmbH & Co. to increase the percentage of the Company's
consolidated income before taxes and such limited partners' interests to which
the limited partners are entitled, to change the basis on which the annual cash
payment made by Xxxxx-Sundstrand GmbH & Co. to such limited partners is computed
in a way that is less favorable to the Company, to increase the percentage of
distributed assets that such limited partners are entitled to receive upon the
liquidation of Xxxxx-Sundstrand GmbH & Co., will not interfere with actions by
the Company or its independent directors or other holders of Securities of the
Company to exercise the rights of Xxxxx-Sunstrand GmbH & Co. to terminate the
limited partnership agreement, or in any other way adversely affect the rights
of the Company or the holders from time to time of the Securities of the
Company.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to the Managers, and the
Managers agree, severally and not jointly, to purchase from the Company and the
Selling Stockholder, at a purchase price of U.S. $ per share, the number of
Firm Securities (rounded up or down, as determined by CSFBL in its discretion,
in order to avoid fractions) set forth opposite the name of such manager in
Schedule A hereto.. Each Selling Stockholder will sell to each Manager its pro
rata share (subject to adjustment by Credit Suisse First Boston (Europe) Limited
to eliminate fractions) based on the number of Firm Securities to be purchased
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by such Manager from Selling Stockholders set forth opposite the name of such
Manager in Schedule B hereto and the total number of Firm Securities bought from
Selling Stockholder by all Managers.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement and the Underwriting Agreement, under Custody Agreements
made with , as custodian ("Custodian"). Each Selling Stockholder agrees that the
shares represented by the certificates held in custody for the Selling
Stockholders under such Custody Agreements are subject to the interests of the
Managers hereunder and the Underwriters under the Underwriting Agreement, that
the arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and the
Underwriting Agreement as if such death or other event or termination had not
occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event or termination.
The Company and the Custodian will deliver the International Firm
Securities to CSFBL for the accounts of the Managers, against payment of the
purchase price in U.S. dollars in Federal (same day) funds by wire transfer or
in Deutsche marks, at a predetermined rate, to accounts at banks acceptable to
CSFBL drawn to the order of the Company in the case of shares of U.S. Firm
Securities and to the order of the Custodian in the case of U.S. Firm Securities
at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx , at
A.M., New York time, on May , 1998 or at such other time not later than seven
full business days thereafter as CSFBL 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 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 U.S. Offering and the International Offering.
The certificates for the International Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBL requests and will be made available for checking and packaging at the
above office of Xxxxxxxx & Xxxxxxxx, at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company and
Xxxxx X. Xxxxxxx from time to time but not more than twice and not more than 30
days subsequent to the date of the Prospectuses, the Managers may purchase all
or less than all of the International Optional Securities at the purchase price
per Security to be paid for the International Firm Securities. The International
Optional Securities to be purchased by the Managers on any Optional Closing Date
shall be in the same proportion to all the Optional Securities to be purchased
by the Managers and U.S. Underwriters on such Optional Closing Date as the
International Firm Securities bear to all the Firm Securities. Xxxxx X. Xxxxxxx
and X. Xxxxxxx & Co. K.G. agree to sell to the Managers the respective numbers
of International Optional Securities obtained by multiplying the number of
International Optional Securities specified in such notice by a fraction the
numerator of which is the number of shares set forth opposite the name of such
Selling Stockholder in Schedule A hereto under the caption "Number of
International Optional Securities to be Sold" and the denominator of which is
the total number of International Optional Shares (subject to adjustment by
CSFBC to eliminate fractions), and the Managers agree, severally and not
jointly, to purchase such International Optional Securities. Such International
Optional Securities shall be purchased for the account of each Manager in the
same proportion as the number of shares of International Firm Securities set
forth opposite such Manager's name bears to the total number of shares of
International Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Managers only for the purpose of covering
over-allotments made in connection with the sale of the International Firm
Securities. No Optional Securities shall be sold or delivered unless the
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International Firm Securities and the U.S. Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised twice and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC on behalf of the Managers and the U.S. Underwriters to the Selling
Stockholders. It is understood that CSFBC is authorized to make payment for and
accept delivery of such Optional Securities on behalf of the U.S. Underwriters
and Managers pursuant to the terms of CSFBC's instructions to the Company.
Each time for the delivery of and payment for the International
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 CSFBC but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The
Custodian will deliver the International Optional Securities being purchased on
each Optional Closing Date to CSFBL for the accounts of the several Managers,
against payment of the purchase price therefor in Federal (same day) funds by
wire transfer to an account at a bank or banks acceptable to CSFBL drawn to the
order of the Custodian, at the above office of Xxxxxxxx & Xxxxxxxx. The
certificates for the International Optional Securities will be in definitive
form, in such denominations and registered in such names as CSFBL requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Xxxxxxxx & Xxxxxxxx, at a
reasonable time in advance of such Optional Closing Date. The Company will
deliver against payment of the purchase price the International Optional
Securities being purchased on each Optional Closing Date. Payment for such
International Optional Securities shall be made by the Managers in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to CSFBL drawn to the order of _______________ at the office of
Xxxxxxxx & Xxxxxxxx, against delivery of the International Optional Securities.
The Company will pay to the Managers as aggregate compensation for their
commitments hereunder and for their services in connection with the purchase of
the International Securities and the management of the offering thereof, if the
sale and delivery of the International Securities to the Managers provided
herein is consummated, an amount equal to U.S. $________ per International
Security purchased for each International Security in ordinary form purchased,
which may be divided among the Managers in such proportions as they may
determine. Such payment will be made on the First Closing Date in the case of
the International Firm Securities and on each Optional Closing Date in the case
of the International Optional Securities sold to the Manager on such Closing
Date, in each case by way of deduction by the Managers of said amount from the
purchase price for the International Securities referred to above.
4. Offering by Managers. It is understood that the several Managers
propose to offer the International Securities for sale to the public as set
forth in the International Prospectus.
In connection with the distribution of the International Securities,
the Managers, through a stabilizing manager, may over-allot or effect
transactions on any exchange, in any over-the-counter market or otherwise which
stabilize or maintain the market prices of the International Securities at
levels other than those which might otherwise prevail, but in such event and in
relation thereto, the Managers will act for themselves and not as agents of the
Company or Selling Stockholders, and any loss resulting from over-allotment and
stabilization will be borne, and any profit arising therefrom will be
beneficially retained, by the Managers. Such stabilizing, if commenced, may be
discontinued at any time.
5. Certain Agreements of the Company, the Selling Stockholders and the
Underwriters. The Company and the Selling Stockholders (solely with respect to
subsections (j) and (k) below) agree with the several Managers 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 U.S. Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBL,
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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. The Company will advise CSFBL
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 either
Prospectus is printed and distributed to any Manager or U.S.
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBL.
(b) The Company will advise CSFBL 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 either of the Prospectuses and will not effect such amendment or
supplementation without CSFBL's prior consent; and the Company will
also advise CSFBL 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 either of the Prospectuses 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 U.S. Underwriter, Manager or dealer, any event occurs as a
result of which either or both of the Prospectuses 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 either or
both of the Prospectuses to comply with the Act, the Company will
promptly notify CSFBL of such event and, in the case of the U.S.
Prospectus, 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 CSFBL's consent to, nor the Managers' 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 its securityholders 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. 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
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Managers four copies of
the Registration Statement (which will be signed and will include all
exhibits), each preliminary prospectus relating to the International
Securities, and, until completion of the distribution of the
International Securities as determined by CSFBL, the International
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBL requests. The International
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
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execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Managers all such documents.
(f) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company in
any jurisdiction outside the United States, Canada and Germany that
would permit a public offering of the Offered Securities, or possession
or distribution of the International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for that
purpose is required.
(g) During the period of 10 years hereafter, the Company will
furnish to CSFBL and, upon request, to each of the other Managers, as
soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will
furnish to CSFBL (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as CSFBL may reasonably request.
(h) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this
Agreement, and will reimburse the Underwriters for the filing fee
incident to, and the reasonable fees and disbursements of counsel to
the Managers in connection with, 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
Prospectuses (including any amendments and supplements thereto) to the
Managers. Nothing in this Section requires the Company to pay for the
non-NASD legal fees of the Underwriters.
(i) 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 CSFBC, except [the issuance or sale of shares of its
Securities in a private placement by the Company as consideration for
the acquisition of another entity or all or substantially all the
assets of another entity, provided the recipient of such shares has
agreed in writing to be bound by the terms of such restrictions for the
remainder of its term, the] grants of employee stock options pursuant
to the terms of a plan in effect on the date hereof, issuances of
Securities pursuant to the exercise of such options, and pursuant to a
winding-up or cancellation of the limited partnership interests.
(j) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group, on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulation in lieu thereof).
(k) Each Selling Stockholder agrees, for a period of 180 days
after the date of the initial public offering of the offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the
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intention to make any such offer, sale, pledge or disposal, without the
prior written consent of CSFBC except for the transfer to family
members, trusts or similar arrangements for bona fide estate planning
reasons or charities, provided the recipient of such shares has agreed
in writing to be bound by the terms of such restrictions for the
remainder of its term and the transfer of shares bought in market
transactions.
6. Conditions of the Obligations of the Managers. The obligations of
the several Managers to purchase and pay for the International Firm Securities
on the First Closing Date and the International 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 and the Selling
Stockholders herein, to the accuracy of the statements of Company officers and
the Selling Stockholders made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Managers shall have received a letter, 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), of Xxxxxx
Xxxxxxxx LLP in the agreed form.
(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 or time as
shall have been consented to by CSFBL. 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 either Prospectus is printed
and distributed to any Manager or U.S. Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBL.
If the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement, the U.S. 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
Managers, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (A) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBL,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the International Securities, whether in the
primary market or in respect of dealings in the secondary market, or
(B)(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 or its subsidiaries which, in the
judgment of CSFBL, 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 International 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 suspension or
limitation of trading in securities generally on the New York Stock
Exchange, the Frankfurt Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities
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of the Company on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by U.S. Federal, New York or German
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States or Germany is involved, any declaration of war
by the United States Congress or Germany, or any other substantial
national or international calamity or emergency if, in the judgment of
CSFBL, the effect of any such 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 International Securities.
(d) The Managers shall have received an opinion or opinions,
dated such Closing Date, of Shearman & Sterling, counsel for the
Company, in the agreed form.
(e) The Managers shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxx Xxxxx & Xxxxxx LLP, counsel for the
Company, in the agreed form.
(f) The Managers shall have received from Xxxxxxxx & Xxxxxxxx
and Bruckhaus Xxxxxxxx Xxxxxx Xxxxx, counsel for the Managers, such
opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the
Prospectuses and other related matters as the Managers 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, Xxxxxxxx & Xxxxxxxx may rely as to all matters
governed by German law upon the opinion of Bruckhaus Xxxxxxxx Xxxxxx
Xxxxx referred to above and Bruckhaus Xxxxxxxx Xxxxxx Xxxxx may rely as
to all matters governed by New York law, the General Corporation Law of
Delaware and Federal law upon the opinion of Xxxxxxxx & Xxxxxxxx
referred to above.
(g) The Manager shall have received the opinion contemplated
in the Power of Attorney executed and delivered by each Selling
Stockholder and an opinion, dated such Closing Date, of , counsel for
the Selling Stockholders, in the agreed form.
(h) The Managers shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct in all material respects; the Company
has complied, in all material respects, 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 either Prospectus was printed and distributed to any
Manager or U.S. Underwriter; and, subsequent to the date of the most
recent financial statements in the Prospectuses, 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 Prospectuses or as described in such certificate.
(i) The Managers shall have received a letter, dated such
Closing Date, of Xxxxxx Xxxxxxxx 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 business days
prior to such Closing Date for the purposes of this subsection.
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(j) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the U.S. Optional Securities, as
the case may be, pursuant to the Underwriting Agreement.
Documents described as being "in the agreed form" are documents which are in the
forms which have been initialed for the purpose of identification by Xxxxxxxx &
Xxxxxxxx, copies of which are held by the Company and CSFBL with such changes as
CSFBL may approve. The Company and the Selling Stockholders will furnish the
Managers with such conformed copies of such opinions, certificates, letters and
documents as the Managers reasonably request. CSFBL may in its sole discretion
waive on behalf of the Managers compliance with any conditions to the
obligations of the Managers hereunder, whether in respect of an Optional Closing
Date or otherwise.
7. Indemnification and Contribution. (a) The Company and [Xxxxx X.
Xxxxxxx], jointly and severally, will indemnify and hold harmless each Manager
against any losses, claims, damages or liabilities, joint or several, to which
such Manager 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, either of the
Prospectuses, 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, and will reimburse each Manager for
any legal or other expenses reasonably incurred by such Manager 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 omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only information furnished by any Manager
consists of the information described as such in subsection (b) below and
Section 7(b) of the Underwriting Agreement; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Manager
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities concerned, to the extent that a prospectus
relating to such Offered Securities was required to be delivered by such Manager
in connection with such purchase and any such loss, claim, damage or liability
of such Manager results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the International Prospectus if the Company
had previously furnished copies thereof to such Manager.
(b) Each Manager will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company and each Selling Stockholder 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, either of the Prospectuses, 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 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 and each Selling Stockholder by such Manager through
CSFBL specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company and each Selling Stockholder 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 Manager consists of the
following information in the International Prospectus furnished on behalf of
each Manager: the last paragraph at the bottom of the cover page concerning
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the terms of the offering by the Managers, the legend concerning
over-allotments--and--,--stabilizing on the inside front cover page--and--,--the
concession and reallowance figures appearing in the paragraph under the caption
"Subscription and Sale" and the information contained in the [and ] paragraph[s]
under the caption "Subscription and Sale".
(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. No indemnifying party shall, 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 includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(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 and the
Selling Stockholders on the one hand and the Managers on the other from the
offering of the International 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 and the Selling Stockholders on
the one hand and the Managers 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 and the Selling Stockholders on the one hand and the Managers on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the International Securities (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Managers. 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, a Selling Stockholder or the Managers 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
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Manager 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 Managers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
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(e) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Manager within the
meaning of the Act; and the obligations of the Managers under this Section shall
be in addition to any liability which the respective Managers may otherwise have
and shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of 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 Managers. If any Manager or Managers default in their
obligations to purchase International Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of International
Securities that such defaulting Manager or Managers agreed but failed to
purchase does not exceed 10% of the total number of shares of International
Securities that the Managers are obligated to purchase on such Closing Date,
CSFBL may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such International Securities by other persons,
including any of the Managers, but if no such arrangements are made by such
Closing Date the non-defaulting Managers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
International Securities that such defaulting Managers agreed but failed to
purchase on such Closing Date. If any Manager or Managers so default and the
aggregate number of shares of International Securities with respect to which
such default or defaults occur exceeds 10% of the total number of shares of
International Securities that the Managers are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBL and the Company for the
purchase of such International 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 Manager, the Company or the Selling Stockholder,
except as provided in Section 9 (provided that if such default occurs with
respect to International Optional Securities after the First Closing Date, this
Agreement will not terminate as to the International Firm Securities or any
International Optional Securities purchased prior to such termination). As used
in this Agreement, the term "Manager" includes any person substituted for a
Manager under this Section. Nothing herein will relieve a defaulting Manager
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, of the Selling Stockholders, and of the several
Managers 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 Manager, the Company, the Selling
Stockholder or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the
International Securities. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the International Securities by the
Managers is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders and the Managers pursuant to Section 7 shall remain in effect and
if any International 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 International Securities by
the Managers 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 Section 6(c)(A) or clause (iii), (iv), or (v) of Section
6(c)(B), the Company will reimburse the Managers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the International Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Managers, will be mailed, delivered or telexed and confirmed to
CSFBL at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention: Company Secretary,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at ______________, Attention: __________________, or, if sent to the
Selling Stockholders, will be mailed, delivered or telegraphed and conformed to
_______________ at ____________, Attention: ;
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provided, however, that any notice to a Manager pursuant to Section 7 will be
mailed, delivered or telexed and confirmed to such Manager.
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, except as provided in
Section 2.D. hereof.
12. Representation of Managers. CSFBL will act for the several Managers
in connection with this financing, and any action under this Agreement taken by
CSFBL will be binding upon all the Managers.
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.
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If the foregoing is in accordance with the Managers' 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, the
Selling Stockholders and the several Managers in accordance with its terms.
Very truly yours,
...................................
[names of Selling Stockholders]
XXXXX INC.
By............................
[Insert title]
The foregoing Subscription Agreement is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:...................................................................
[Insert title]
XXXXX XXXXXX INC.
XXXXXX XXXXXXXX & CO. LIMITED
[OTHER MANAGERS]
Each by its duly authorized attorney-in-fact:
.......................................................................
XXXXX XXXXXX INC.
.......................................................................
XXXXXX XXXXXXXX & CO. LIMITED
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SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
INTERNATIONAL FIRM INTERNATIONAL
SECURITIES SECURITIES
SELLING STOCKHOLDER TO BE SOLD TO BE SOLD
------------------- ---------- ----------
----------- -----------
Total........................................... =========== ===========
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SCHEDULE B
NUMBER OF
INTERNATIONAL TOTAL NUMBER
FIRM OF
SECURITIES INTERNATIONAL
TO BE SOLD BY SECURITIES
PURCHASED
SELLING
MANAGER COMPANY STOCKHOLDER
------- ------- -----------
Credit Suisse First Boston (Europe) Limited
Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxxx & Co. Limited
-------- ----------- --------------
Total ======== =========== ==============
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