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2,000,000 Shares of Common Stock
LIBBEY INC.
UNDERWRITING AGREEMENT
----------------------
November 5, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
SALOMON BROTHERS INC
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
Libbey Inc., a corporation organized and existing under the
laws of Delaware (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several underwriters named in Schedule I
hereto (the "Underwriters") an aggregate of 2,000,000 shares (the "Firm Shares")
of its common stock, par value $.01 per share (the "Common Stock"), and, for the
sole purpose of covering over-allotments in connection with the sale of the Firm
Shares, at the option of the Underwriters, up to an additional 300,000 shares
(the "Additional Shares") of Common Stock. The Firm Shares and any Additional
Shares purchased by the Underwriters are referred to herein as the "Shares". The
Shares are more fully described in the Registration Statement referred to below.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (No. 333-28735), for the
registration of the Shares under the Securities Act
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of 1933, as amended (the "Act"), and the offering of the Shares from time to
time in accordance with Rule 415 under the Act. Such registration statement,
including the prospectus, financial statements and schedules, exhibits and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the registration statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
or Rule 434 of the Rules and Regulations of the Commission under the Act (the
"Regulations"), is herein called the "Registration Statement" and the
prospectus, including any prospectus supplement, in the form first filed with
the Commission pursuant to Rule 424(b) of the Regulations, is herein called the
"Prospectus". If the Company has filed an abbreviated registration statement to
register an additional number of Shares pursuant to Rule 462(b) under the Act
(the "Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall include such Rule 462 Registration Statement. The
term "preliminary prospectus" as used herein means a preliminary prospectus,
including any preliminary prospectus supplement, used in connection with the
offer of the Shares prior to the date hereof that omits information with respect
to the Shares and the offering permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any reference herein
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the effective
date of the Registration Statement, the date of such preliminary prospectus or
the date of the Prospectus, as the case may be, and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the Exchange Act after the
effective date of the Registration Statement, the date of such preliminary
prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed.
(b) The Registration Statement (including the Rule 462
Registration Statement, if any, which became effective upon filing) has been
declared effective by the Commission; no stop order suspending the effectiveness
of the Registration Statement is in effect and no proceedings for such purpose
are pending before or threatened by the Commission; and any required filing of
the preliminary prospectus pursuant to Rule 424(b) of the Regulations has been
made in accordance with Rule 424(b).
(c) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement (or, if an annual report on Form 10-K has been filed by
the Company subsequent to the effective date of the Registration Statement, then
at the time of the most recent such filing), when the Prospectus is first filed
with the Commission (whether filed pursuant to Rule 424(b) or Rule 434 of the
Regulations), when any supplement to or amendment of the Prospectus is filed
with the Commission, when any document filed under the Exchange Act is filed and
at the Closing Date and the Additional Closing Date, if any, (each as
hereinafter respectively defined), the Registration Statement and the Prospectus
and any amendments thereof and supplements thereto complied or will comply in
all material respects with the applicable provisions of the Act and the
Regulations and the Exchange Act and the respective rules and regulations
thereunder and does
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not or will not contain an untrue statement of a material fact and does not or
will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
in light of the circumstances under which they were made, not misleading. When
any related preliminary prospectus was first filed with the Commission (whether
filed pursuant to Rule 424(a) or 424(b)(2) of the Regulations) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and the Exchange Act and the respective rules and regulations
thereunder and did not contain an untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
in order to make the statements therein in light of the circumstances under
which they were made not misleading. No representation or warranty is made in
this subsection (c), however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through you as herein stated
expressly for use in connection with the preparation thereof. If Rule 434 is
used, the Company will comply with the requirements of Rule 434.
(d) Ernst & Young LLP, who have certified the financial
statements and supporting schedules of the Company included or incorporated by
reference in the Registration Statement, are independent public accountants as
required by the Act and the Regulations. Deloitte & Touche LLP, who have
certified the audited financial statements and supporting schedules of Crisa
Corporation and WorldCrisa Corporation and Deloitte & Touche (Mexico), who have
certified the audited financial statements of Vitrocrisa, S.A. de C.V.
(collectively, the "Vitro Entities"), incorporated by reference in the
Registration Statement, are independent public accountants as required by the
Act and the Regulations.
(e) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no material
adverse change or any development involving a prospective material adverse
change in the condition (financial or other) or results of operations of the
Company and its subsidiaries taken as a whole, or the interests and businesses
acquired in the Vitro Transactions (as defined in the Prospectus), in each case
whether or not arising from transactions in the ordinary course of business (a
"Material Adverse Change"); and since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus.
(f) This Underwriting Agreement (this "Agreement") and the
transactions contemplated herein have been duly and validly authorized by the
Company and this Agreement has been duly and validly executed and delivered by
the Company.
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(g) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or by-laws, or in default in the
performance or observation of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a party or
to which any of such corporations may be bound other than any such violation or
default that would not have a material adverse effect on the condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"), and the execution,
delivery and performance by the Company of its obligations under this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a party or
by which any of such corporations or their respective properties or assets may
be bound, (ii) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries or (iii)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, other than, with respect to clause (i) or
(iii), any such conflict, breach, violation or default which would not have a
Material Adverse Effect. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any public, governmental or regulatory agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties or
assets is required for the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered by
the Company hereunder, except the registration under the Act of the Shares and
such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(h) All of the outstanding shares of capital stock of the
Company are duly authorized and validly issued, fully paid and nonassessable and
were not issued and are not now in violation of or subject to any preemptive
rights. The Shares have been duly authorized and, when issued, delivered and
sold in accordance with this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and nonassessable, and will not
have been issued in violation of or be subject to any preemptive rights. The
Company had, at June 30, 1997, an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus. The Common Stock,
the Firm Shares and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(i) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its properties
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(owned, leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or be in
good standing which will not have a Material Adverse Effect. Each of the Company
and its subsidiaries (i) has all requisite power and authority to own lease and
operate its properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus, and (ii) has all
necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies, to own lease and operate its properties and
conduct its business as now being conducted and as described in the Registration
Statement and the Prospectus, except to the extent that the failure to so
possess will not have a Material Adverse Effect, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(j) Except as described in the Registration Statement and
Prospectus, there is no litigation or governmental proceeding to which the
Company or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
subsidiaries which might result in a Material Adverse Change or which is
required to be disclosed in the Registration Statement and the Prospectus; and
there are no contracts or documents of the Company which are required to be
filed as exhibits to the Registration Statement by the Act or by the Regulations
which have not been so filed.
(k) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares or any action resulting in a violation of Regulation M
under the Exchange Act.
(l) The financial statements, including the notes thereto, and
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and, to the knowledge of the Company, the Vitro Entities, as of the
dates indicated and the results of its operations for the periods specified;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting schedules included
or incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(m) The pro forma financial statements contained in the
preliminary prospectus and the Prospectus under the heading "Unaudited Pro Forma
Consolidated Financial Information" have been prepared on a basis consistent
with the historical statements referred to in clause (l) above, except for the
pro forma adjustments specified therein, and (A) include all material
adjustments to the historical financial data required by Rule 11-02 of
Regulation S-X necessary to reflect the Vitro Transactions (as defined in the
Prospectus), (B) give effect to the assumptions made on a reasonable basis, (C)
present fairly in all material respects in accordance with generally accepted
accounting principles consistently applied throughout such periods, the
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historical and proposed transactions contemplated by the preliminary prospectus
and the Prospectus and (D) comply in all material respects with the requirements
of Rules 11-01 and 11-02 of Regulation S-X; and the other pro forma financial
information and pro forma financial data set forth in the Prospectus under the
caption "Summary Pro Forma Financial Data" are derived from such financial
statements.
(n) No holder of securities of the Company or any of its
subsidiaries has any rights, not effectively satisfied or waived, to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(o) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended.
(p) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(q) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied or will comply in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission under the Exchange Act, and, when read together
with the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto became or become effective and at the
Closing Date, did not or will not contain an untrue statement of a material fact
and will not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(r) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect; and the Company
is not aware of any existing or imminent labor disturbance by the employees of
any of the principal suppliers, manufacturers or contractors for the Company and
its subsidiaries which would reasonably be expected to result in any Material
Adverse Effect.
(s) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "intellectual
property") presently employed by them in connection with the business now
operated by them, except where the failure to own or possess or have the ability
to acquire any such intellectual property would not have a Material Adverse
Effect, and the Company has not received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in any Material Adverse Effect.
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(t) The Company and its subsidiaries have good title to all
properties owned by them, free and clear of all liens, encumbrances and defects
except (i) as do not materially interfere with the use made and proposed to be
made of such properties, (ii) as set forth in the Registration Statement
(including the Notes to the financial statements referred to in clause (l)
above, incorporated by reference therein) or (iii) as would not reasonably be
expected to have a Material Adverse Effect.
(u) Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries are in material compliance with all
applicable existing federal, state, local and foreign laws and regulations
relating to protection of human health or the environment or imposing liability
or standards of conduct concerning any Hazardous Material (as hereinafter
defined) ("Environmental Laws"), except, in each case, where such noncompliance,
singly or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (ii) any "hazardous waste" as defined by
the Resource Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl, and (v) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental Law.
(v) There is no alleged liability, or to the best knowledge
and information of the Company, potential liability, (including, without
limitation, alleged or potential liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, or penalties) of the Company or any of its subsidiaries
arising out of, based on or resulting from (i) the presence or release into the
environment of any Hazardous Material at any location, whether or not owned by
the Company or any of its subsidiaries or (ii) any violation or alleged
violation of any Environmental Law, (x) which alleged or potential liability is
required to be disclosed in the Registration Statement, other than as disclosed
therein, or (y) which alleged or potential liability, singly or in the
aggregate, would have a Material Adverse Effect.
(w) The Shares have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
(x) The Shares are, or will be when issued, "excepted
securities" within the meaning of Rule 101(c) of Regulation M under the Exchange
Act.
(y) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of Cuba
or with any person or affiliate located in Cuba.
2. Purchase, Sale and Delivery of the Shares.
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(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to
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sell to the Underwriters and the Underwriters, severally and not jointly, agree
to purchase from the Company, at a purchase price per share of $36.170, the
number of Firm Shares set forth opposite the respective names of the
Underwriters in Schedule I hereto plus any additional number of Shares which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the office of Xxxxxxx Xxxxxxx
& Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by you and the Company, at 10:00 A.M. on the third
or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 9 hereof)
following the date of the determination of the initial public offering price of
the Shares, or such other time not later than ten business days after such date
as shall be agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment shall be made to
the Company by wire transfer in same day funds, against delivery to you for the
respective accounts of the Underwriters of certificates for the Firm Shares to
be purchased by them. Certificates for the Firm Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date. The Company
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to 300,000 Additional Shares at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Company.
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
PROVIDED, HOWEVER, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Additional Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as you in your sole discretion shall make.
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Payment for the Additional Shares shall be made by wire
transfer in same day funds at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may be
mutually acceptable, upon delivery of the certificates for the Additional Shares
to you for the respective accounts of the Underwriters.
3. OFFERING. Upon your authorization of the release of the
Firm Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters that:
(a) The Company will file the Prospectus pursuant to Rule
424(b) or Rule 434 within the prescribed time period and will provide evidence
satisfactory to you of such timely filing. If the Company elects to rely on Rule
434, the Company will prepare and file a term sheet that complies with the
requirements of Rule 434. If the Company elects to rely on Rule 462(b), the
Company will file a Rule 462(b) Registration Statement with the Commission by
10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the
Company will at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Securities Act and
such Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when any amendment to the
Registration Statement becomes effective, (ii) of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement, the preliminary prospectus or the Prospectus, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the receipt
of any comments from the Commission, and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If the Commission shall propose or enter a stop
order at any time, the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain the lifting of such
order as soon as possible. The Company will not file any amendment to the
Registration Statement or any amendment of or supplement to the preliminary
prospectus or the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement before or after the
effective date of the Registration Statement or file any document under the
Exchange Act if such document would be deemed to be incorporated by reference
into the Prospectus to which you shall reasonably object in writing after being
timely furnished in advance a copy thereof.
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(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred as a result
of which the preliminary prospectus or the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company, include
an 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, in
light of the circumstances under which they were made, not misleading, or if it
shall be necessary at any time to amend or supplement the preliminary prospectus
or the Prospectus or Registration Statement to comply with the Act or the
Regulations, or to file under the Exchange Act so as to comply therewith any
document incorporated by reference in the Registration Statement or the
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, the Company will notify you promptly and prepare and file
with the Commission an appropriate amendment or supplement (in form and
substance satisfactory to you) which will correct such statement or omission or
which will effect such compliance and will use its best efforts to have any
amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you three signed
copies of the Registration Statement, including exhibits and all documents
incorporated by reference therein and all amendments thereto, and the Company
will promptly deliver to each of the Underwriters such number of copies of any
preliminary prospectus, the Prospectus, the Registration Statement, all
amendments of and supplements to such documents, if any, and all documents
incorporated by reference in the Registration Statement and Prospectus or any
amendment thereof or supplement thereto, without exhibits, as you may reasonably
request.
(d) The Company will endeavor in good faith, in cooperation
with you, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you may
reasonably designate and to maintain such qualification in effect for so long as
required for the distribution thereof; except that in no event shall the Company
be obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process or to subject itself to taxation
as doing business in any jurisdiction.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to you as soon
as practicable, but not later than 45 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(f) During the period of 90 days from the date of the
Prospectus, the Company will not, directly or indirectly, without your prior
written consent, issue, sell, offer or agree to sell, contract to sell, grant
any option to purchase, make a short sale, or otherwise dispose of or engage in
any hedging or other transaction that is designed or reasonably expected to lead
to a disposition of (or announce any such offer, sale, grant of an option to
purchase or other transaction relating to) any shares of Common Stock, any
option or warrant to purchase shares of Common Stock or any securities
convertible into, exercisable for or exchangeable for
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shares of Common Stock, and the Company will obtain the undertaking of each of
its executive officers and directors not to engage in any of the aforementioned
transactions on their own behalf (except with respect to any shares of Common
Stock under such executive officer's 401(k) Plans), other than (i) the Company's
sale of Shares hereunder, (ii) any options, and any shares of Common Stock
issued upon the exercise of any such options, granted under the Company's Stock
Option Plan and (iii) any shares of Common Stock contributed by the Company to,
or distributed under, the Company's 401(k) Plans.
(g) During a period of three years from the effective date of
the Registration Statement, the Company will furnish to you copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its reasonable best efforts to cause
the Shares to be listed on the New York Stock Exchange.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations thereunder.
5. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company hereunder, including those in
connection with (i) preparing, printing, duplicating, filing and distributing
the Registration Statement, as originally filed and all amendments thereof
(including all exhibits thereto), any preliminary prospectus, the Prospectus and
any amendments or supplements thereto (including, without limitation, fees and
expenses of the Company's accountants and counsel), the underwriting documents
(including this Agreement) and all other documents related to the public
offering of the Shares (including those supplied to the Underwriters in
quantities as hereinabove stated); (ii) the issuance, transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable
thereon; (iii) the qualification of the Shares under state or foreign securities
or Blue Sky laws, including the costs of printing and mailing a preliminary and
final "Blue Sky Survey" and the fees of counsel for the Underwriters and such
counsel's disbursements in relation thereto; (iv) listing the Shares on the New
York Stock Exchange; (v) filing fees of the Commission; (vi) the cost of
printing certificates representing the Shares; and (vii) the cost and charges of
any transfer agent or registrar.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company herein contained, as of the date
hereof and as of the Closing Date (for purposes of this Section 6
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"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to
this Section 6 of any misstatement or omission, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
in a timely fashion in accordance with Section 4(a) hereof; and, at or prior to
the Closing Date, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
Xxxxxx & Xxxxxxx, counsel for the Company, dated the Closing Date addressed to
the Underwriters and in form and substance satisfactory to Underwriters'
Counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware. The Company has all requisite corporate power
and authority to own, lease, license and operate its properties and
conduct its business as described in the Registration Statement and the
Prospectus.
(ii) The Company has authorized, issued and outstanding
capital stock as set forth in the Registration Statement and the
Prospectus under "Description of Capital Stock". All of the outstanding
shares of capital stock of the Company are duly authorized and validly
issued, fully paid and nonassessable. The Shares to be delivered on the
Closing Date have been duly authorized and, when delivered by the
Company in accordance with this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable and, to the best of such counsel's knowledge, free of
preemptive rights. The statements contained in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport to
constitute summaries of the terms of the Common Stock, constitute
accurate summaries in all material respects.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The execution, delivery by the Company of, and the
issuance and sale of the Shares by the Company pursuant to, this
Agreement do not and will not violate or conflict with any provision of
the certificate of incorporation or by-laws of the Company or any
applicable federal law or administrative regulation of the United
States, or any provision of the General Corporation Law of the State of
Delaware, or, to the best knowledge of such counsel, any judgment,
decree or order, of any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets. To such
counsel's knowledge, no consent, approval, authorization, order,
registration, filing, qualification,
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license or permit of or with any court or any public, governmental, or
regulatory agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby, except for
(1) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(v) The Registration Statement and the Prospectus
(excluding the documents incorporated therein by reference) and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Act and the Regulations for registration statements
on Form S-3.
(vi) The Registration Statement is effective under the
Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no proceedings
therefor have been initiated or threatened by the Commission and all
filings required by Rule 424(b) of the Regulations have been made.
(vii) The Company is not an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended.
(viii) No holder of any securities of the Company has any
rights under the Company's certificate of incorporation or by-laws or,
to the best of such counsel's knowledge, under any contract, not
effectively satisfied or waived, to the registration of securities of
the Company because of the filing of the Registration Statement or
otherwise in connection with the sale of the Shares contemplated
hereby.
(ix) In addition, such opinion shall also contain a
statement that although such counsel has not undertaken to determine
independently the accuracy and completeness of the statements contained
in the Registration Statement and Prospectus and takes no
responsibility therefor, except with respect to paragraph (ii) above,
of this Section 6(b), such counsel has participated in conferences with
officers and representatives of the Company, representatives of the
independent public accountants for the Company and the Underwriters at
which the contents of the Prospectus and related matters were discussed
and, no facts have come to the attention of such counsel which would
lead such counsel to believe that either the Registration Statement at
the time it became effective (including the information deemed to be
part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b) or Rule 434, if applicable), or any amendment
thereof made prior to the Closing Date as of the date of such
amendment, contained an untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus as
of its date (or any amendment thereof or supplement thereto made prior
to the
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Closing Date as of the date of such amendment or supplement) and as of
the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no belief or
opinion with respect to the financial statements and schedules and
other financial data included or incorporated by reference therein) in
each case after excluding any statement in any such document which does
not constitute part of the Registration Statement or the Prospectus as
amended or supplemented pursuant to Rule 412 of Regulation C under the
Act and after substituting therefor any statement modifying or
superseding such excluded statement.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Company and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel, and need not express any opinion with regard to the laws
of any jurisdiction other than the federal law of the United States and the
General Corporation Law of the State of Delaware.
(c) At the Closing Date you shall have received the opinion of
Xxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of the Company,
dated the Closing Date addressed to the Underwriters and in substance
satisfactory to the Underwriters' counsel, to the effect that:
(i) The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in
the aggregate have a Material Adverse Effect.
(ii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with all
requisite corporate power and authority to own, lease, license and
operate its property and conduct its business as described in the
Registration Statement and the Prospectus and is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which
the character or location of its properties (owned, leased or licensed)
or the nature of conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have 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,
fully paid and nonassessable and was not issued in violation of
preemptive rights, and all of the issued and outstanding capital stock
of such subsidiaries has been duly and validly issued, fully paid and
nonassessable and was not issued in violation of preemptive rights, and
is owned of record by the Company, directly, and is free and clear of
any material security
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interest, mortgage, pledge, lien, encumbrance, claim, restriction on
transfer, shareholders' agreement, voting trust or other defect of
title whatsoever.
(iii) The execution, delivery by the Company of, and the
issuance and sale of the Shares by the Company pursuant to, this
Agreement do not and will not conflict with or result in a breach of
any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a
party or by which any of such corporations or their respective
properties or assets may be bound and which is listed or referred to in
Item 10 of the exhibits to the quarterly report of the Company on Form
10-Q for the quarter ended June 30, 1997.
(iv) To the best of such counsel's knowledge, after due
inquiry, there is no litigation or governmental or other action, suit,
proceeding or investigation before any court or before or by any
public, regulatory or governmental agency or body pending or threatened
against, or involving the properties or business of, the Company or any
of its subsidiaries, which is of a character required to be disclosed
in the Registration Statement and the Prospectus which has not been
properly disclosed therein; to the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments that are required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(v) In addition, such opinion shall also contain a
statement that although such counsel has not undertaken to determine
independently the accuracy and completeness of the statements contained
in the Registration Statement and Prospectus and takes no
responsibility therefor, such counsel has participated in conferences
with officers and representatives of the Company, representatives of
the independent public accountants for the Company and the Underwriters
at which the contents of the Prospectus and related matters were
discussed and, no facts have come to the attention of such counsel
which would lead such counsel to believe that either the Registration
Statement at the time it became effective (including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) or Rule 434, if applicable), or
any amendment thereof made prior to the Closing Date as of the date of
such amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or supplement
thereto made prior to the Closing Date as of the date of such amendment
or supplement) and as of the Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need
express no belief or opinion
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with respect to the financial statements and schedules and other
financial data included or incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Company and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel, and need not express any opinion with regard to the laws
of any jurisdiction other than the federal law of the United States, the laws of
the state of Ohio and the General Corporation Law of the State of Delaware.
(d) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date the obligations of
the Company to be performed hereunder on or prior thereto have been duly
performed and (iv) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company and its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not been any Material
Adverse Change, except in each case as described in or contemplated by the
Prospectus.
(f) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from Ernst & Young LLP, independent
auditors for the Company, dated, respectively, as of the date of this Agreement
and as of the Closing Date addressed to the Underwriters and in form and
substance satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the meaning of
the Act and the Regulations and stating that the answer to Item 10 of the
Registration Statement is correct insofar as it relates to them; (ii) stating
that, in their opinion, the financial statements and schedules of the Company
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and the
applicable published rules and regulations of the Commission thereunder; (iii)
on the basis of procedures consisting of a reading of the latest available
unaudited interim consolidated financial statements
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of the Company, and its subsidiaries, a reading of the minutes of meetings and
consents of the shareholders and boards of directors of the Company and its
subsidiaries and the committees of such boards subsequent to December 31, 1996,
inquiries of officers and other employees of the Company and its subsidiaries
who have responsibility for financial and accounting matters of the Company and
its subsidiaries with respect to transactions and events subsequent to December
31, 1996 and other specified procedures and inquiries to a date not more than
five days prior to the date of such letter, nothing has come to their attention
that would cause them to believe that: (A) the unaudited consolidated financial
statements and schedules of the Company incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and, if
applicable, the Exchange Act and the applicable published rules and regulations
of the Commission thereunder or that such unaudited consolidated financial
statements are not fairly presented in conformity with generally accepted
accounting principles except to the extent certain footnote disclosures have
been omitted in accordance with applicable rules of the Commission under the
Exchange Act applied on a basis substantially consistent with that of the
audited consolidated financial statements incorporated by reference in the
Registration Statement and the Prospectus; (B) with respect to the period
subsequent to June 30, 1997 there were, as of the date of the most recent
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and as of a specified date not more than five days prior
to the date of such letter, any changes in the capital stock or long-term
indebtedness of the Company or any decrease in the net current assets or
stockholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet presented in the Registration Statement
and the Prospectus, except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; (C) that during the period from June 30, 1997 to the
date of the most recent available monthly consolidated financial statements of
the Company and its subsidiaries, if any, and to a specified date not more than
five days prior to the date of such letter, there was any decrease, as compared
with the corresponding period in the prior fiscal year, in total revenues, or
total or per share net income, except for decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; or (D) any unaudited pro forma consolidated financial
statements included or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the Act and the Regulations or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements; and (iv) stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, and other financial
information pertaining to the Company and its subsidiaries set forth in the
Registration Statement and the Prospectus, which have been specified by you
prior to the date of this Agreement, to the extent that such amounts, numbers,
percentages, and information may be derived from the general accounting and
financial records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you set forth in such letter, and found them to be in agreement.
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(g) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter from Deloitte & Touche LLP, independent
public accountants for World Crisa Corporation and Crisa Corporation
(collectively, "Crisa"), dated, as of the date of this Agreement addressed to
the Underwriters and in form and substance satisfactory to you, to the effect
that: (i) they are independent certified public accountants with respect to
Crisa within the meaning of the Act and the Regulations; (ii) stating that, in
their opinion, the financial statements and schedules of Crisa incorporated by
reference in the Registration Statement and the Prospectus and covered by their
opinion therein comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the applicable
published rules and regulations of the Commission thereunder; (iii) on the basis
of procedures consisting of a reading of the latest available unaudited interim
consolidated financial statements of Crisa, a reading of the minutes of meetings
and consents of the shareholders and boards of directors of Crisa and the
committees of such boards subsequent to December 31, 1996, inquiries of officers
and other employees of Crisa who have responsibility for financial and
accounting matters of Crisa with respect to transactions and events subsequent
to December 31, 1996 and other specified procedures and inquiries to August 29,
1997, nothing has come to their attention that would cause them to believe that:
the unaudited consolidated financial statements and schedules of Crisa
incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the Act and, if applicable, the Exchange Act and the applicable
published rules and regulations of the Commission thereunder or that such
unaudited consolidated financial statements are not fairly presented in
conformity with generally accepted accounting principles except to the extent
certain footnote disclosures have been omitted in accordance with applicable
rules of the Commission under the Exchange Act applied on a basis substantially
consistent with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement and the Prospectus; and
(iv) stating that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, and other financial information pertaining
to Crisa set forth in the Registration Statement and the Prospectus, which have
been specified by you prior to the date of this Agreement, to the extent that
such amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of Crisa or from schedules furnished by
Crisa, and excluding any questions requiring an interpretation by legal counsel,
with the results obtained from the application of specified readings, inquiries,
and other appropriate procedures specified by you set forth in such letter, and
found them to be in agreement.
(h) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter from Deloitte & Touche (Mexico),
independent public accountants for Vitrocrisa, S.A. de C.V. ("Vitro"), dated, as
of the date of this Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to you, to the effect that:
(i) they are independent certified public accountants with respect to Vitro
within the meaning of the Act and the Regulations; (ii) stating that, in their
opinion, the financial statements and schedules of Vitro incorporated by
reference in the Registration Statement and the Prospectus and covered by their
opinion therein comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the applicable
published rules and regulations of the Commission thereunder; (iii) on the basis
of procedures
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consisting of a reading of the latest available unaudited interim consolidated
financial statements of Vitro, a reading of the minutes of meetings and consents
of the shareholders and boards of directors of Vitro and the committees of such
boards subsequent to December 31, 1996, inquiries of officers and other
employees of Vitro who have responsibility for financial and accounting matters
of Vitro with respect to transactions and events subsequent to December 31, 1996
and other specified procedures and inquiries to a date not more than five days
prior to the date of such letter, nothing has come to their attention that would
cause them to believe that: (A) the unaudited consolidated financial statements
and schedules of Vitro incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and, if applicable, the Exchange
Act and the applicable published rules and regulations of the Commission
thereunder or that such unaudited consolidated financial statements are not
fairly presented in conformity with generally accepted accounting principles
except to the extent certain footnote disclosures have been omitted in
accordance with applicable rules of the Commission under the Exchange Act
applied on a basis substantially consistent with that of the audited
consolidated financial statements incorporated by reference in the Registration
Statement and the Prospectus; (B) with respect to the period subsequent to June
30, 1997 there were, as of the date of the most recent available monthly
consolidated financial statements of Vitro Entities, if any, any changes in the
capital stock or long-term indebtedness of Vitro or any decrease in the net
current assets or stockholders' equity of Vitro, in each case as compared with
the amounts shown in the most recent balance sheet presented in the Registration
Statement and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter or (C) that during the period from June 30,
1997 to the date of the most recent available monthly consolidated financial
statements of Vitro, if any, there was any decrease, as compared with the
corresponding period in the prior fiscal year, in total revenues, or total or
per share net income, except for decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur or which are set forth in
such letter; and (iv) stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, and other financial
information pertaining to Vitro set forth in the Registration Statement and the
Prospectus, which have been specified by you prior to the date of this
Agreement, to the extent that such amounts, numbers, percentages, and
information may be derived from the general accounting and financial records of
Vitro or from schedules furnished by Vitro, and excluding any questions
requiring an interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries, and other appropriate procedures
specified by you set forth in such letter, and found them to be in agreement.
(i) Prior to the Closing Date the Company shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
(j) You shall have received from each person who is a director
or executive officer of the Company an agreement to the effect that (except with
respect to any shares of Common Stock under such executive officer's 401(k)
Plans) such person will not, directly or indirectly, without your prior written
consent, sell, offer or agree to sell, contract to sell, grant any option to
purchase, make a short sale, or otherwise dispose of or engage in any hedging or
other transaction that is designed or reasonably expected to lead to a
disposition of (or announce
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any such offer, sale, grant of an option to purchase, or other disposition or
transaction relating to) any shares of Common Stock, any option or warrant to
purchase shares of Common Stock or any securities convertible into, exercisable
for or exchangeable or exercisable for shares of Common Stock, for a period of
90 days after the date of the Prospectus.
(k) At the Closing Date, the Shares shall have been approved
for listing on the New York Stock Exchange, upon notice of issuance.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
----------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act, against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but limited to attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, 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; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; AND PROVIDED, FURTHER, that as to any preliminary
prospectus this indemnity shall not inure to the benefit of any Underwriter, its
officers or employees or any person controlling such Underwriter on account of
any loss, claim, damage, liability or action arising from the sale of the Shares
to any person by that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or
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omission or alleged omission of a material fact in such preliminary prospectus
was corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 4(c). For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall not
be deemed to include the documents incorporated by reference therein, and no
Underwriter shall be obligated to send or give any supplement or amendment to
any document incorporated by reference in any preliminary prospectus or the
Prospectus to any person other than a person to whom such Underwriter had
delivered such incorporated document or documents in response to a written
request therefor. This indemnity agreement will be in addition to any liability
which the Company may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through you
expressly for use therein; PROVIDED, HOWEVER, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and in the third and seventh paragraphs under the caption "Underwriting" in
the Prospectus constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the registration statement
relating to the Shares as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but
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the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; PROVIDED, HOWEVER, that such consent was not unreasonably withheld. No
indemnifying party shall without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or compromise
or consent to the entry of any judgment with respect to any claim or action in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim or action.
8. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and one or more of
the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 7 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and the Underwriters in connection
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with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company and
of the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8
and the preceding sentence, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
--------------------------
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number
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of Firm Shares or Additional Shares which the Underwriters have agreed to
purchase hereunder, then such Firm Shares or Additional Shares to which the
default relates shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
----------------------------------------
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(a) This Agreement shall become effective upon the execution
of this Agreement. Until this Agreement becomes effective as aforesaid, it may
be terminated by the Company by notifying you or by you notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 11 and of Sections
1, 5, 7 and 8 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York or American Stock Exchanges shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York or American Stock Exchanges by the New York or American Stock
Exchanges or by order of the Commission or any other governmental authority
having jurisdiction; or (C) if a banking moratorium has been declared by a state
or federal authority or if any new restriction materially adversely affecting
the distribution of the Firm Shares or the Additional Shares, as the case may
be, shall have become effective; or (D) (i) if the United States becomes engaged
in hostilities or there is an escalation of hostilities involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been such change in political, financial or
economic conditions if the effect of any such event in (i) or (ii) as in your
judgment makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
reasonably incurred by the Underwriters in connection herewith.
12. NOTICES. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attention: Xxxxx X. Xxxx; if sent to the Company, shall be
mailed, delivered, or telegraphed and confirmed in writing to the Company, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxxx.
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13. PARTIES. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters and the Company and the
controlling persons, directors, officers, employees and agents referred to in
Sections 7 and 8, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
LIBBEY INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
SALOMON BROTHERS INC
By Bear, Xxxxxxx & Co. Inc.
By /s/ Xxxxx X. Xxxx
-----------------------
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx & Co. Inc............................. 586,700
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated......................... 586,650
Salomon Brothers Inc................................ 586,650
BT Alex. Xxxxx Incorporated......................... 30,000
Dresdner Kleinwort Xxxxxx North America LLC......... 30,000
X.X. Xxxxxxx & Sons, Inc............................ 30,000
X.X. Xxxxxx Securities Inc.......................... 30,000
Xxxxxx Xxxxxxx & Co. Incorporated................... 30,000
NationsBanc Xxxxxxxxxx Securities, Inc.............. 30,000
Societe Generale Securities Corporation............. 30,000
Xxxxxxxxx Securities Corp........................... 30,000
---------
Total....................................... 2,000,000
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