CHICAGO BRIDGE & IRON COMPANY N.V.
Common Shares
UNDERWRITING AGREEMENT
1. Introductory. Praxair, Inc., a Delaware corporation (the "Selling
Shareholder"), proposes to sell from time to time common shares, par value NLG
0.01 per share ("Common Shares") of Chicago Bridge & Iron Company N.V., a
Netherlands corporation (the "Company") registered under the registration
statement referred to in Section 2(a) ("Registered Securities"). Particular
offerings of the Registered Securities will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
The Company and the Selling Shareholder hereby agree with each Underwriter
as follows:
2. Representations and Warranties of the Company and the Selling
Shareholder. (a) The Company, as of the date of each Terms Agreement referred to
in Section 3, represents and warrants to, and agrees with, each Underwriter
that:
(i) A registration statement (No. 333- ), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of offering
of the Offered Securities, as first
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filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 ("Act"), including all
material incorporated by reference therein, is hereinafter referred to as
the "Prospectus". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(ii) On the effective date of the registration statement relating to
the Registered Securities, such registration statement complied in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will comply in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(iii) The Company has been duly incorporated and is validly existing
as a public company with limited liability (naamloze vennootschap) under
the laws of the Netherlands, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries (as hereinafter
defined) taken as a whole.
(iv) Each subsidiary of the Company (collectively, the "Subsidiaries")
is listed on Exhibit A hereto, together with its jurisdiction of
incorporation and the beneficial ownership interest of the Company therein.
Exhibit B hereto sets forth all Subsidiaries of the Company which
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are, individually or on a consolidated basis, material to the operations of
the Company and its Subsidiaries and the conduct of their respective
businesses (collectively, the "Significant Subsidiaries"). Each Significant
Subsidiary has been duly incorporated and is an existing corporation in
good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole; all of the
issued and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued and is fully paid and
nonassessable; and, except as described in the Prospectus, the capital
stock of each Significant Subsidiary owned by the Company, directly or
through Subsidiaries, is owned free and clear of any mortgage, pledge,
lien, security interest, restriction upon voting, claim or incumbency of
any kind, or, other than as imposed by operation of law, restriction upon
transfer (other than agreements previously disclosed to the Representatives
providing for rights of first refusal and preemptive rights); and there are
no rights granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) to acquire any such capital stock,
any additional capital stock or any other securities of any Significant
Subsidiary (other than agreements previously disclosed to the
Representatives providing for rights of first refusal and preemptive
rights).
(v) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date (as defined below), such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the Prospectus;
and except as described in the Prospectus, the shareholders of the Company
have no preemptive rights with respect to the Offered Securities which have
not been waived.
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(vi) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any third party that
would give rise to a valid claim against the Company or any Underwriter for
a brokerage commission, finder's fee or other like payment in connection
with the transactions contemplated by the Terms Agreement (including the
provisions of this Agreement).
(vii) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act; and there are no
legal or governmental proceedings, statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or Prospectus or required to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(viii) The Offered Securities in the form of Bearer Shares (as defined
in the Prospectus) have been approved for listing on the Official Market of
the AEX-Effectenbeurs nv (the "Amsterdam Stock Exchange") and the Offered
Securities in the form of New York Shares (as defined in the Prospectus)
have been approved for listing on the New York Stock Exchange, Inc. (the
"NYSE") subject to notice of issuance.
(ix) No material consent, approval or authorization, and no material
order, registration or qualification of, or filing with, any third party
(whether acting in an individual, fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is required for the
consummation of the transactions to be effected by the Company, the Selling
Shareholder and their respective subsidiaries contemplated by the Terms
Agreement (including the provisions of this Agreement), except such as have
been obtained and made under the Act and such as may be required under
state or foreign securities laws in connection with the offer and sale of
the Offered Securities.
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(x) Except as described in the Prospectus, under current laws and
regulations of The Netherlands and any political subdivision thereof, all
dividends and other distributions declared and payable on the Offered
Securities may be paid by the Company to the holder thereof in United
States dollars (including, without limitation, payments on any Offered
Securities in the form of New York Shares), and all such payments made to
holders thereof who are non-residents of The Netherlands will, except as
described in the Prospectus, not be subject to income, withholding or other
taxes under laws and regulations of The Netherlands and any political
subdivision or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or deduction in The
Netherlands or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in The Netherlands or any political subdivision or taxing
authority thereof or therein; provided that a reduced rate of withholding
tax on dividends, as described in the Prospectus, may only be applied by
the Company after the relevant permission to do so has been obtained from
the competent taxing authority in accordance with the formalities of the
relevant tax treaty and that, absent such permission, a reduction of
dividend withholding tax can, if applicable, only be obtained through a
refund procedure after a dividend has been paid, in accordance with the
formalities as prescribed by the relevant tax treaty.
(xi) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters and, except as described in the
Prospectus, no capital gains, income, withholding or other taxes are
payable by a non-Dutch resident Underwriter to The Netherlands or any
political subdivision or taxing authority thereof or therein in connection
with (A) the sale and delivery of the Offered Securities to or for the
accounts of the Underwriters or (B) the sale and delivery outside The
Netherlands by the Underwriters of the Offered Securities to the initial
purchasers thereof.
(xii) The execution, delivery and performance of the Terms Agreement
(including the provisions of this Agreement) and the offer and sale of the
Offered Securities will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under (A) any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic
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or foreign, having jurisdiction over the Company or any Subsidiary or any
of their properties or operations, or any agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the properties or operations of the
Company or any Subsidiary is bound or to which any of the properties or
operations of the Company or any Subsidiary is subject, or (B) the articles
of association or the charter or by-laws of the Company or any Significant
Subsidiary, as the case may be, except, in the case of clause (A), for such
conflicts, breaches, violations or defaults which could not reasonably be
expected to, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole,
or a material adverse effect on the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement); and the Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement).
(xiii) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the Company.
(xiv) Except as described in the Prospectus, the Company and its
Significant Subsidiaries have good and marketable title to all material
real properties and all other material properties and material assets
described in the Prospectus as being owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them; and except as described in the Prospectus, the Company and its
Significant Subsidiaries hold any material leased real or personal property
under valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them and neither the
Company nor any Significant Subsidiary has been notified of any material
claim that has been asserted by anyone adverse to the rights of the Company
or any Significant Subsidiary under any of such leases.
(xv) Except as described in the Prospectus, the Company and its
Subsidiaries possess adequate certificates, authorizations, licenses or
permits issued by appropriate
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governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any written notice of threatened or
actual proceedings (and are not aware of any facts that would reasonably be
expected to result in such proceeding) relating to the revocation or
modification of any such certificate, authorization, license or permit,
except for any such non-possession or proceeding as could not reasonably be
expected to, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole.
The Company and its Subsidiaries are in compliance with their respective
obligations under such certificates, authorizations, licenses or permits
and to the Company's knowledge, no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination of such
certificates, authorizations, licenses or permits or violation of such laws
or regulations, except for such non-compliance and events as could not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole.
(xvi) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries,
taken as a whole.
(xvii) The Company and its Subsidiaries own or have obtained valid and
enforceable licenses for all material trademarks, trademark registrations,
service marks, service xxxx registrations, trade names, copyrights,
copyright registrations, computer software, trade secrets and proprietary
or other intellectual property owned, sold or used by or licensed to or by
the Company or any of its Subsidiaries or that are necessary for the
conduct of their businesses (collectively, the "Intellectual Property"),
and the Company and its Subsidiaries are not aware of any claim or
challenge by any third party to the rights of the Company or its
Subsidiaries with respect to any Intellectual Property or to the validity
or scope of the Intellectual Property and neither the Company nor any
Subsidiary has any claim against any third party with respect
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to infringement of any Intellectual Property, which claims or challenges,
if adversely determined, could reasonably be expected to, individually or
in the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries taken as a whole.
(xviii) Except as described in the Prospectus and except as could not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries,
taken as a whole, the properties, assets and operations of each of the
Company and its Subsidiaries are in compliance with all applicable federal,
state, local and foreign laws, rules and regulations, orders, decrees,
judgments, permits and licenses relating to worker health and safety, and
to the protection and clean-up of the natural environment and to the
protection or preservation of natural resources, including, but not limited
to, those relating to the processing, manufacturing, generation, handling,
disposal, transportation or release of hazardous materials (collectively,
"Environmental Laws"). With respect to such properties, assets and
operations, there are no events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of its
Subsidiaries of which the Company is aware that may interfere with or
prevent compliance or continued compliance with applicable Environmental
Laws in a manner that could reasonably be expected to, individually or in
the aggregate, have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company and
its Subsidiaries, taken as a whole. Except as described in the Prospectus
and except as could not reasonably be expected to, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries, taken as a whole, (A) to the Company's knowledge, none of
the Company or any of its Subsidiaries is the subject of any federal,
state, local or foreign investigation pursuant to Environmental Laws, (B)
none of the Company or any of its Subsidiaries has received any written
notice or claim pursuant to Environmental Laws and (C) there are no
pending, or, to the knowledge of the Company, threatened actions, suits or
proceedings against the Company, any of its Subsidiaries or its properties,
assets or operations, in connection with any such Environmental Laws. The
term
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"hazardous materials" shall mean those substances that are regulated by or
pursuant to any applicable Environmental Laws.
(xix) Each "employee benefit plan" within the meaning of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), in which
employees of the Company or any Subsidiary participate or as to which the
Company or any Subsidiary has any liability (the "ERISA Plans") is in
compliance with the applicable provisions of ERISA and the Internal Revenue
Code of 1986, as amended (the "Code"). Neither the Company nor any
Subsidiary has any liability with respect to the ERISA Plans, nor does the
Company expect that any such liability will be incurred, that could
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole. Except as described in the Prospectus, the value of the
aggregate vested and nonvested benefit liabilities under each of the ERISA
Plans that is subject to Section 412 of the Code, determined as of the end
of such ERISA Plan's most recent ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such Plan's most
recent actuarial valuation report, did not exceed the aggregate current
value of the assets of such ERISA Plan allocable to such benefit
liabilities. Neither the Company nor any Subsidiary has any liability,
whether or not contingent, with respect to any ERISA Plan that provides
post-retirement welfare benefits that could reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole. The
descriptions of the Company's stock option, incentive compensation and
other employee benefits plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth in the Prospectus are
accurate in all material respects.
(xx) Except as described in the Prospectus (A) neither the Company nor
any of its Significant Subsidiaries is in violation of its articles of
association or of its charter or by-laws, as the case may be, (B) neither
the Company nor any of its Subsidiaries is in violation of any applicable
law, ordinance, administrative or governmental rule or regulation, or any
order, decree or judgment of any court or governmental agency or body
having jurisdiction
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over the Company or any of its Subsidiaries and (C) no event of default or
event that, but for the giving of notice or the lapse of time or both,
would constitute an event of default exists, or upon consummation of the
sale of the Offered Securities will exist, under any indenture, mortgage,
loan agreement, note, lease, permit, license or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or to
which any of the properties, assets or operations of the Company or any
such Subsidiary is subject, except, in the case of clauses (B) and (C), for
such violations and defaults that could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries, taken as a whole.
(xxi) The Company and its Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which they
are engaged; all material policies of insurance and material performance
bonds insuring the Company or any Significant Subsidiary or their
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its Significant Subsidiaries are in compliance with
such policies and instruments in all material respects; and except as
described in the Prospectus or as could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries, taken as a whole, there are
no claims by the Company or a Significant Subsidiary under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause.
(xxii) Except as described in the Prospectus, there are no pending
actions, suits or proceedings against or, to the knowledge of the Company,
affecting the Company, any of its Subsidiaries or any of their respective
properties, assets or operations that, if determined adversely to the
Company or any of its Subsidiaries, could reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries, taken as a whole, or could
materially and adversely affect the ability of the
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Company to perform its obligations under the Terms Agreement (including the
provisions of this Agreement); and no such actions, suits or proceedings
are, to the knowledge of the Company, threatened or contemplated.
(xxiii) The financial statements, together with the related schedules
and notes, included in each Registration Statement and the Prospectus
present fairly, in all material respects, the financial position of the
Company and its consolidated Subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis; the pro forma financial
information included in the Prospectus has been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
information, the assumptions used in preparing such pro forma financial
information provide a reasonable basis for presenting the effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
The other financial and statistical information set forth in the Prospectus
present fairly, in all material respects, the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(xxiv) Since the dates as of which information is given in the
Registration Statement and the Prospectus, and except as has occurred as
contemplated in the Prospectus, (i) the Company and its Subsidiaries, taken
as a whole, have not incurred any material liability or obligation
(indirect, direct or contingent) or entered into any material and adverse
verbal or written agreement or other transaction that is not in the
ordinary course of business or that could reasonably be expected to result
in a material reduction in the future earnings of the Company and its
Subsidiaries taken as a whole; (ii) the Company and its Subsidiaries, taken
as a whole, have not sustained any material loss or interference with their
business or properties from fire, flood, windstorm, accident or other
calamity (whether or not covered by insurance); (iii) there has been no
material increase, except as contemplated by the Prospectus, in the
indebtedness of the Company and ex-
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cept as contemplated by the Prospectus, no change in the capital stock of
the Company and except as contemplated by the Prospectus, no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock; and (iv) there has been no material adverse change in
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole.
(xxv) The Company is not and, after giving effect to the offering and
sale of the Offered Securities pursuant to the Terms Agreement (including
the provisions of this Agreement) will not be, an "investment company" or
an entity "controlled" by an "investment company" as defined in the
Investment Company Act of 1940.
(xxvi) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Offered Securities and the Company has not distributed and will not
distribute any offering material in connection with the offering and sale
of the Offered Securities other than any preliminary prospectus filed with
the Commission or the Prospectus or other materials, if any, permitted by
the Act or the Rules and Regulations.
(xxvii) Each of the Company and the Significant Subsidiaries has
timely filed (or joined in the filing of) all material federal, state,
local and foreign tax reports and returns that it was required to file (or
join in the filing of) and such reports and returns are complete and
correct in all material respects. All material taxes shown to be due on
such reports and returns or otherwise relating to periods ending on or
before the Closing Date, owed by the Company or any of its Significant
Subsidiaries (whether or not shown on any report or return) or to which the
Company or any of the Significant Subsidiaries may be liable under the
Treasury regulations section 1.1502-6 (or analogous state or foreign law
provisions) on account of having been a member of an "affiliated group" as
defined in section 1504 of the Code (or other group filing on a combined
basis) at any time on or prior to the Closing Date, if required to have
been paid, have been paid, except such tax assessments, if any, as are
being contested in good faith and as to which reserves have been provided
which the Company reasonably believes are adequate. To the Company's
knowledge after due inquiry, the charges,
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accruals and reserves on the books of the Company and the Subsidiaries in
respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments. No tax deficiency has
been asserted or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries that could reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, properties or results of
operations of the Company and the Subsidiaries taken as a whole.
(xxviii) To the Company's knowledge, the Company is neither a foreign
personal holding company ("FPHC") within the meaning of section 552 of the
Code nor a passive foreign investment company ("PFIC") within the meaning
of section 1296 of the Code, is not, upon consummation of the transactions
contemplated hereby, likely to become an FPHC, a PFIC or a controlled
foreign corporation ("CFC") (within the meaning of section 957 of the
Code), and the Company is not aware of any contemplated action by any
shareholder or shareholders of the Company that would be likely to cause
the Company to become an FPHC, PFIC or CFC.
(xxix) Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company as required by the Act.
(xxx) The Company has obtained the written agreement of each person
who will be, on the Closing Date, a supervisory director and of each
officer of the Company (other than Xxxxxxx X. Xxxxxxx) listed on Exhibit C
hereto, in form reasonably satisfactory to the Underwriters, that such
person will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or request or demand the filing with the
Commission of a registration statement under the Act relating to, any
additional Common Shares or securities convertible into or exchangeable or
exercisable for Common Shares, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the time
of the execution of the Terms Agreement and ending the number of days after
the Closing Date specified under "Blackout" in the Terms Agreement, other
than the exercise of employee stock options outstanding on the date of the
Terms Agreement and transactions under the Company's New 401(k) Plan and
the Share Purchase Plan (each as defined in the Prospectus).
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(b) The Selling Shareholder, as of the date of each Terms Agreement
referred to in Section 3, represents and warrants to, and agrees with, each
Underwriter with respect to such Terms Agreement that:
(i) The Selling Shareholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by the Selling Shareholder under the Terms Agreement on
such Closing Date and full right, power and authority to enter into the
Terms Agreement (including the provisions of this Agreement) and to sell,
assign, transfer and deliver the Offered Securities to be delivered by such
Selling Shareholder on such Closing Date thereunder; and upon the delivery
of and payment for the Offered Securities on each Closing Date under the
Terms Agreement (including the provisions of this Agreement) the
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by the Selling Shareholder on such Closing Date,
assuming each of the Underwriters has purchased the Offered Securities
purchased by it in good faith and without notice of any adverse claim.
(ii) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were
made) not misleading. The preceding sentence shall apply solely to
statements in or omissions from a Registration Statement or the Prospectus
based upon information relating specifically to the Selling Shareholder.
(iii) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Selling Shareholder and any third
party that would give rise to a valid claim against the Selling Shareholder
or
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any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement).
(iv) The Terms Agreement (including the provisions of this Agreement)
has been duly authorized, executed and delivered by the Selling
Shareholder.
(v) The execution, delivery and performance of the Terms Agreement
(including the provisions of this Agreement) by the Selling Shareholder and
the offer and sale of the Offered Securities will not conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction over
the Selling Shareholder or any of its properties or operations, or any
agreement or instrument to which the Selling Shareholder is bound or to
which any of the properties or operations of the Selling Shareholder is
subject, or (B) the charter or by-laws of the Selling Shareholder, except,
in the case of clause (A), for such conflicts, breaches, violations or
defaults which could not reasonably be expected to, individually or in the
aggregate, have a material adverse effect on the consummation of the
transactions contemplated by the Terms Agreement (including the provisions
of this Agreement); and the Selling Shareholder has full power and
authority to sell or cause the sale of the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(vi) No material consent, approval or authorization, and no material
order, registration or qualification of, or filing with, any third party
(whether acting in an individual, fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is required for the
performance by the Selling Shareholder of its obligations under the Terms
Agreement (including the provisions of this Agreement), except such as have
been obtained and made under the Act and such as may be required under
state or foreign securities laws in connection with the offer and sale of
the Offered Securities.
(vii) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Offered
-16-
Securities, and the Selling Shareholder has not distributed and will not
distribute any offering material in connection with the offering and sale
of the Offered Securities other than any preliminary prospectus filed with
the Commission or the Prospectus or other materials, if any, permitted by
the Act or the Rules and Regulations.
(viii) There are no pending (or, to the Selling Shareholder's
knowledge, threatened or contemplated) actions, suits or proceedings or, to
the Selling Shareholder's knowledge, investigations against or affecting
the Selling Shareholder or any of its properties, assets or operations that
could reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the ability of the Selling Shareholder to
perform its obligations under the Terms Agreement (including the provisions
of this Agreement).
(ix) The Selling Shareholder is not a "foreign person" within the
meaning of section 1445 of the Code, and Selling Shareholder shall furnish
to you on or prior to the Closing Date a certification of the Selling
Shareholder's non-foreign status, as set forth in Treasury regulations
section 1.1445-2(b).
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Selling Shareholder determines to sell the Offered Securities. The
Terms Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the number of shares to
be purchased by each Underwriter and the purchase price to be paid by the
Underwriters. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Selling Shareholder agree as the time
for payment and delivery, being herein and in the Terms Agreement referred to as
the "Closing Date"), the place of delivery and payment and any details of the
terms of offering that should be reflected in the prospectus supplement relating
to the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of
-17-
securities for all the Offered Securities sold pursuant to the offering. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
The certificates for the Offered Securities delivered to the Underwriters
on the Closing Date will be in definitive form, in such denominations and
registered in such names as the Lead Underwriter requests.
4. Certain Agreements of the Company and the Selling Shareholder. (A) The
Company agrees with the several Underwriters that it will furnish to counsel for
the Underwriters, one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend
-18-
the Prospectus to comply with the Act, the Company promptly will notify the
Lead Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Lead
Underwriter reasonably designates and will continue such qualifications in
effect so long as required for the distribution; provided that the Company
shall not be required to qualify to do business in any jurisdiction where
it is not now qualified or to file a general consent to service of process
in any jurisdiction.
(g) During the period of three years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end
-19-
of each fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Securities Exchange Act of 1934
or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as the Lead Underwriter may reasonably
request.
(h) The Company agrees with the Underwriters and the Selling
Shareholder that the Company will pay all expenses incident to the
performance of the obligations of the Selling Shareholder and the
obligations of the Company under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel not to exceed $12,500 in
connection with qualification of the Registered Securities for sale under
the laws of such jurisdictions as the Lead Underwriter may designate and
the printing of memoranda relating thereto for any applicable filing fee
incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. of the Registered Securities, for any travel
expenses of the Company's officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with
prospective purchasers of Registered Securities and for expenses incurred
in distributing the Prospectus, any preliminary Prospectus, any preliminary
prospectus supplements or any other amendments or supplements to the
Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional Common
Shares or securities convertible into or exchangeable or exercisable for
Common Shares, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
the Lead Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date
specified under "Blackout" in the Terms Agreement, except: (i) grants of
employee stock options pursuant to the terms of a plan in effect on the
date of the Terms Agreement, issuances of Securities pursuant to the
exercise of such options or the exercise of any other employee stock
options outstanding on the date
-20-
of the Terms Agreement and (ii) sales pursuant to the New 401(k) Plan and
the Share Purchase Plan (each as defined in the Prospectus), in each case
pursuant to the terms of such plans in effect on the date of the Terms
Agreement.
(j) As promptly as practicable following the Closing Date, the Company
will take all actions reasonably necessary to obtain the relevant
permission for a reduced rate of withholding tax on dividends paid on the
Securities from the competent taxing authority in accordance with the
formalities of the relevant tax treaty.
(B) The Selling Shareholder agrees with the several Underwriters that:
(a) The Selling Shareholder will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the sale of the Offered Securities
and on the execution and delivery of the Terms Agreement (including the
provisions of this Agreement). All payments to be made by the Selling
Shareholder hereunder or thereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever unless the Selling Shareholder is compelled
by law to deduct or withhold such taxes, duties or charges. In that event,
the Selling Shareholder shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made. The agreement in this paragraph (a)
shall not modify the separate agreement between the Company and the Selling
Shareholder in the Registration Rights Agreement (as defined in the
Prospectus) between such parties, dated as of January 1, 1997, as amended.
(b) The Selling Shareholder agrees to deliver to the Lead Underwriter
on or prior to the Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(c) The Selling Shareholder agrees not to offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly or request or
demand the filing with the Commission of a registration statement under the
-21-
Act relating to, any additional Common Shares of the Company or securities
convertible into or exchangeable or exercisable for any Common Shares, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the Terms
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement, except the sale of Offered
Securities to the Underwriters pursuant to the Terms Agreement (including
the provisions of this Agreement).
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Selling Shareholder herein, to the accuracy of the statements of
Company and Selling Shareholder officers made pursuant to the provisions hereof,
to the performance by the Company and the Selling Shareholder of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Xxxxxx Xxxxxxxx LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations;
(ii) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of the Terms Agreement, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net
assets, as compared with amounts shown on the latest balance sheet
included in the Prospectus, except in all instances for changes,
increases or decreases that the Prospectus discloses have occurred or
may occur;
-22-
(iii) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year and with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in consolidated
net sales, income from operations, income before extraordinary items
or net income, except in all instances for changes, increases or
decreases that the Prospectus discloses have occurred or may occur;
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus with the results obtained from inquiries,
a reading of general accounting records and other procedures specified
in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results,
except as otherwise specified in such letter; and
(v) (A) they have read the unaudited pro forma income statement
and other pro forma financial information included in the Registration
Statements (collectively, the "Pro Forma Information");
(B) they have made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters about (i)
the basis for the determination of the pro forma adjustments, and (ii)
whether the unaudited pro forma consolidated income statement complies
as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the Act;
(C) they have proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the Pro
Forma Information; and
(D) on the basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that the Pro Forma Information
does not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X
under the Act or that the pro
-23-
forma adjustments have not been properly applied to the historical amounts
in the compilation of such Pro Forma Information.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(A)(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company, the Selling Shareholder or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
Subsidiaries which, in the judgment of a majority in interest of the
Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange or the Amsterdam
Stock Exchange, or any setting of minimum prices for trading on any such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by either U.S. Federal or New York authorities or in Amsterdam
declared by the relevant authorities in The Netherlands; or (v) any
outbreak or escalation of major hostilities in which the United States or
The Netherlands is involved, any declaration of war by Congress or any
other substan-
-24-
tial national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including any Representatives,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, United States counsel for the
Company and the Selling Shareholder, to the effect that:
(i) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement.
(ii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities will not be an "investment company"
or an entity "controlled" by an "investment company" as defined in the
Investment Company Act of 1940.
(iii) To the knowledge of such counsel, no consent, approval or
authorization and no order, registration or qualification of, or
filing with, any third party (whether acting in an individual
fiduciary or other capacity) or any governmental or regulatory agency
or body or any court is required to be obtained or made by the Company
or the Selling Shareholder for the consummation of the transactions to
be effected by the Company or the Selling Shareholder contemplated by
the Terms Agreement (including the provisions of this Agreement),
except such as have been obtained and made under the Act and such as
may be required under state securities laws in connection with the
offer and sale of the Offered Securities; and to the knowledge of such
counsel, the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) and offer and
sale of the Offered Securities will not conflict with or result in a
breach or violation of any
-25-
of the terms and provisions of, or constitute a default under, (A) any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
Subsidiary of the Company or the Selling Shareholder or any of their
properties or operations, or any material agreement or instrument
identified to such counsel to which any of them is a party or by which
any of them is bound or to which any of their properties is subject,
or (B) the charter or by-laws of any Significant Subsidiary or the
Selling Shareholder, as the case may be, except in the case of clause
(A), for such conflicts, breaches, violations or defaults which could
not reasonably be expected to, individually or in the aggregate, have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole, or a material adverse effect on the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement);
(iv) To the knowledge of such counsel, the Selling Shareholder
had valid and unencumbered title to the Offered Securities delivered
by such Selling Shareholder on such Closing Date and had full
corporate power and authority to sell, assign, transfer and deliver
the Offered Securities delivered by the Selling Shareholder on such
Closing Date as contemplated by the Terms Agreement (including the
provisions of this Agreement); and, assuming each of the Underwriters
has purchased the Offered Securities purchased by it in good faith and
without notice of any adverse claim, the several Underwriters have
acquired valid and unencumbered title to the Offered Securities
purchased by them on such Closing Date hereunder;
(v) The Registration Statement was declared effective under the
Act as of the date and time specified in such opinion, the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein, and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the
-26-
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act and the
Rules and Regulations;
(vi) The descriptions in the Registration Statement and the
Prospectus of statutes, contracts and other documents and, to the
knowledge of such counsel, legal and governmental proceedings, are
accurate in all material respects and fairly present the information
required to be shown with respect to such statutes, proceedings,
contracts and other documents;
(vii) The Terms Agreement (including the provisions of this
Agreement) have been duly authorized, executed and delivered by the
Company and the Selling Shareholder;
(viii) The statements made in the Prospectus under "Taxation
United States Federal Income Taxes," insofar as they relate to
provisions of U.S. federal tax law therein described, have been
reviewed by such counsel and fairly present the information disclosed
therein in all material respects;
(ix) Except as described in the Prospectus, to the knowledge of
such counsel, the shareholders of the Company have no preemptive
rights with respect to the Offered Securities; and
(x) Such counsel has participated in conferences with officers
and other representatives of the Company and representatives of the
Selling Shareholder, counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except to the extent described in (vi) and (viii) above), such
counsel shall advise that, on the basis of the foregoing (relying as
to materiality to a large extent upon the
-27-
opinions of officers and other representatives of the Company and
representatives of the Selling Shareholder), no facts have come to the
attention of such counsel that lead it to believe that such
registration statement, at the time it became effective, the
Registration Statement, as of the date of the Terms Agreement or as of
the Closing Date, or any amendment thereto, as of its date or as of
the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of its date
or as of the Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need not express any comment with respect
to the financial statements and schedules and other financial and
statistical data contained in the Registration Statement and the
Prospectus).
In giving such opinions, such counsel may limit its opinion to laws of
the State of New York, the General Corporation Law of the State of Delaware
and the Federal laws of the United States of America, and matters
specifically governed thereby and may also rely on the opinion of Xxxxxx X.
Xxxxx, Esq and Loeff Xxxxxx Xxxxxxx referred to herein.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx X. Xxxxx, Esq., Corporate Counsel of the Company,
to the effect that:
(i) Each of the Company's Significant Subsidiaries has been duly
incorporated and is a validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; and each of
the Company and its Significant Subsidiaries is duly qualified to
transact business as a foreign corporation in good standing in all
other jurisdictions in which it owns, leases or operates properties or
in which the conduct of its business or its ownership, leasing or
operation of
-28-
property requires such qualification, except to the extent that the
failure to be so qualified or in good standing could not reasonably be
expected to have a material adverse effect on the Company and its
Subsidiaries, taken as a whole; and all of the outstanding shares of
capital stock of the Significant Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and
all such shares shown on Exhibit B hereof are owned by the Company,
directly or through Subsidiaries, free and clear of any mortgage,
pledge, lien, security interest, restriction upon voting, claim or
incumbency of any kind, or, other than as imposed by operation of law,
restriction upon transfer (other than agreements previously disclosed
to the Representatives providing for rights of first refusal and
preemptive rights); and neither the Company nor any Significant
Subsidiary has granted rights to or in favor of any third party
(whether acting in an individual, fiduciary or other capacity) to
acquire any such capital stock, any additional capital stock or any
other securities of any Significant Subsidiary (other than agreements
previously disclosed to the Representatives providing for rights of
first refusal and preemptive rights);
(ii) To the knowledge of such counsel, no material consent,
approval or authorization, and no material order, registration or
qualification of, or filing with, any third party (whether acting in
an individual fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions to be
effected by the Company or its Subsidiaries contemplated by the Terms
Agreement (including the provisions of this Agreement), except such as
have been obtained and made under the Act and such as may be required
under state or foreign securities laws in connection with the offer
and sale of the Offered Securities; the execution, delivery and
performance of the Terms Agreement (including the provisions of this
Agreement) and the offer and sale of the Offered Securities will not
conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (A) any statute, any
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any Subsidiary of the
Company or any of
-29-
their properties, or any agreement or instrument to which the Company
or any such Subsidiary is a party or by which the Company or any such
Subsidiary or the Selling Shareholder is bound or to which any of the
properties of the Company or any such Subsidiary is subject, or (B)
the charter or by-laws of any Significant Subsidiary, except, in the
case of clause (A), for such conflicts, breaches, violations, or
defaults which could not reasonably be expected to, individually or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries, taken as a whole, or a material
adverse effect on the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement);
(iii) Except as described in the Prospectus, the Company and its
Subsidiaries possess adequate certificates, authorizations, licenses
or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not
received any written notice of threatened or actual proceedings
relating to the revocation or modification of any such certificate,
authorization, license or permit, except for any such non-possession
or proceeding as could not reasonably be expected to, individually or
in the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries taken as a whole. To the knowledge of
such counsel, except as described in the Prospectus, the Company and
its Subsidiaries are in compliance with their respective obligations
under such certificates, authorizations, licenses or permits and, to
such counsel's knowledge, no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination of such
certificates, authorizations, licenses or permits or violation of such
laws or regulations, except for such non-compliance and events as
could not reasonably be expected to, individually or in the aggregate,
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole;
-30-
(iv) Except as described in the Prospectus, to the knowledge of
such counsel, there are no pending actions, suits or proceedings
against or affecting the Company, any of its Subsidiaries or any of
their respective properties, assets or operations that, if determined
adversely to the Company or any of its Subsidiaries, could reasonably
be expected to, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its
Subsidiaries taken as a whole, or could materially and adversely
affect the ability of the Company to perform its obligations under the
Terms Agreement (including the provisions of this Agreement); and, to
the knowledge of such counsel, no such actions, suits or proceedings
are threatened or contemplated;
(v) To the knowledge of such counsel, except as described in the
Prospectus and except as could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole, the
properties, assets and operations of the Company and its Subsidiaries
are in compliance with all applicable Environmental Laws. To the
knowledge of such counsel, except as described in the Prospectus and
except as could not reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries taken as a whole, (A) none of the
Company or any of its Subsidiaries is the subject of any federal,
state, local or foreign investigation pursuant to Environmental Laws,
and (B) none of the Company or any of its Subsidiaries has received
any written notice or claim pursuant to Environmental Laws. For the
purpose of this opinion, "Environmental Laws" means all federal,
state, local and foreign laws, statutes, codes, ordinances, rules,
regulations, directives, permits, licenses, or orders relating to the
natural environment, or employee health or safety, including, but not
limited to, any law, statute, code, ordinance, rule, regulation,
directive, permit, license or order relating to (1) the release,
discharge or emission of any pollutant into the natural environ-
-31-
ment, (2) damage to any natural resource, (3) the use, handling or
disposal of any chemical substance or (4) workplace or worker safety
and health, as such requirements are promulgated by the specifically
authorized governmental authority responsible for administering such
requirements, or imposed by judicial order or fiat.
(vi) Such counsel does not know of any legal or governmental
proceedings required to be described in a Registration Statement or
the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in a Registration
Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described or filed as required;
and
(vii) Such counsel has participated in conferences with officers
and other representatives of the Company and representatives of the
Selling Shareholder, counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except to the extent described in (vi) above), such counsel shall
advise that, on the basis of the foregoing, no facts have come to the
attention of such counsel that lead it to believe that such
registration statement, as of the date it became effective, the
Registration Statement, as of the date of the Terms Agreement or as of
the Closing Date, or any amendment thereto, as of its date or as of
the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of its date
or as of the Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
-32-
understood that such counsel need not express any comment with respect
to the financial statements and schedules and other financial and
statistical data contained in the Registration Statement and the
Prospectus).
(viii) In giving such opinions, such counsel may limit its
opinion to laws of the State of Illinois, the General Corporation Law
of the State of Delaware and the Federal Laws of the United States of
America, and matters specifically governed thereby, except that such
counsel shall make such investigations (which may be limited to
relying on the statements or certificates of governmental officials or
directors or officers of the Company's subsidiaries, or the advice of
Xxxxxx Xxxxxxxx LLP or other recognized accounting firms and their
affiliates) in such other jurisdictions in which the Company and the
Significant Subsidiaries do business, as is appropriate to render the
opinions set forth in clauses (i) and (ii).
In giving such opinion, such counsel may rely on the opinion of Loeff
Xxxxxx Xxxxxxx referred to above.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Loeff Xxxxxx Xxxxxxx, Netherlands counsel for the Company
and the Selling Shareholder, substantially in the form attached hereto as
Exhibit D.
In giving such opinion, such counsel may rely on the opinions of
Xxxxxx Xxxxxx & Xxxxxxx and Xxxxxx X. Xxxxx, Esq., referred to above, as
to matters of laws other than the laws of The Netherlands.
(g) The Representatives shall have received from Xxxxx Xxxxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Xxxxx Xxxxxxxxxx may
rely as to the incorporation of the Company and all other matters governed
by Netherlands law upon the opinion of Loeff Xxxxxx Xxxxxxx, referred to
above.
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(h) The Representatives shall have received a certificate, dated the
Closing Date, of Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, in which they
shall state that, to the best of their knowledge after reasonable
investigation: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder and under the Terms Agreement at or prior to the
Closing Date; no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; and subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(i) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to the Closing Date for the purposes of this subsection.
(j) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Selling Shareholder in which such
officers shall state that, to the best of their knowledge after reasonable
investigation: the representations and warranties of the Selling
Shareholder in this Agreement are true and correct; and the Selling
Shareholder has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under the Terms Agreement
(including the provisions of this Agreement) at or prior to such Closing
Date.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Un-
-34-
derwriters compliance with any conditions to the obligations of the Underwriters
under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement; and provided, further, that, with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus or preliminary prospectus supplement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required to
be delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities to such person, a
copy of the Prospectus if the Company had previously furnished such quantity of
copies thereof to such Underwriter as reasonably requested by or on behalf of
such Underwriter.
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(b) The Selling Shareholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Shareholder will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement; and provided,
further, that the Selling Shareholder shall only be subject to such liability to
the extent that the untrue statement or alleged untrue statement or omission or
alleged omission is based upon information specifically relating to the Selling
Shareholder; and provided, further, that, with respect to any untrue statement
or alleged untrue statement in or omission or alleged omission from any
preliminary prospectus or preliminary prospectus supplement, the indemnity
agreement contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished such quantity of copies
thereof to such Underwriter as reasonably requested by or on behalf of such
Underwriter.
-36-
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and the Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or the Selling Shareholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by each of the Company
and the Selling Shareholder in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action or proceeding (including any
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under subsection (a), (b)
or (c) above, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action or proceeding is
brought against any indemnified party and it notifies the indemnifying
-37-
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who, if the parties to any such
action or proceeding (including impleaded parties) include both the indemnified
and the indemnifying parties and representation of both parties by such counsel
would be inappropriate due to actual or potential differing interests between
them, shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholder on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholder on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Selling Shareholder bear to the total underwriting discounts and commissions re-
-38-
ceived by the Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Shareholder on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The agreement in this subsection (e)
shall not modify the separate agreement between the Selling Shareholder and the
Company regarding indemnification and contribution set forth in the Registration
Rights Agreement (as defined in the Prospectus) between such parties, dated as
of January 1, 1997, as amended. Under no circumstances shall the Selling
Shareholder be required to make any contribution pursuant to this subsection (e)
in excess of the amount it would be required to contribute pursuant to Section
7(c) of such Registration Rights Agreement as in effect on the date hereof; and
the Company shall contribute any such amount that would have been payable by the
Selling Shareholder but for the provisions of this sentence.
(f) The obligations of the Company and the Selling Shareholder under this
Section shall be in addition to any liability which the Company and the Selling
Shareholder may otherwise have, and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have
-39-
and shall extend, upon the same terms and conditions, to each director of the
Company, to each officer or managing director of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of shares of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Selling Shareholder for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the Selling
Shareholder for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, the Terms Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Selling
Shareholder or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Selling Shareholder, and their respective officers and of the
several Underwriters set forth in or made pursuant to the Terms Agreement
(including the provisions of this Agreement) will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or the Selling Shareholder,
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase
-40-
of the Offered Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company, the Selling
Shareholder and the Underwriters pursuant to Section 6 shall remain in effect
and, if any Offered Securities have been purchased hereunder, the
representations and warranties in Section 2 and all obligations under Section 4
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of the Terms Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their address furnished to the Company and the Selling Shareholder in writing
for the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Chicago Bridge & Iron
Company N.V., X.X. Xxx 00000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, with a copy to
Chicago Bridge & Iron Company, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000, Attention: General Counsel or, if sent to Praxair, will be mailed,
delivered or telegraphed and confirmed to it at Praxair, Inc., 00 Xxx Xxxxxxxxx
Xxxx, Xxxxxxx, XX 00000-0000, Attention: Vice President and Treasurer; provided,
however, that any notice to an Underwriter pursuant to Section 6 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company, the
Selling Shareholder and such Underwriters as are identified in the Terms
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder. 11. Representation of Underwriters. Any
Representatives will act for the several Underwriters in connection with the
financing described in the Terms Agreement, and any action under such Terms
Agreement (including the provisions of this Agreement) taken by the
Representatives jointly or by the Lead Underwriter will be binding upon all the
Underwriters.
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12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
14. Submission to Jurisdiction. The Company and the Selling Shareholder
each hereby submit to the non-exclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company irrevocably appoints Xxxxxx X. Xxxxx, c/o
Chicago Bridge & Iron Company, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000, as its authorized agent in the United States upon which process may
be served in any such suit or proceeding and agrees that service of process upon
such agent by registered mail, return receipt requested, and written notice of
said service to the Company by the person serving the same to the address
provided in Section 9, shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding; provided, however,
that, if service is effected upon such agent, the Company agrees to waive any
defense based upon insufficient or improper service of process, improper venue
or forum non conveniens. The Company further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for a period of seven years from the date of the Terms
Agreement.
15. Foreign Currency Judgments. The obligation of the Company in respect of
any sum due to any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following receipt by such Underwriter of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) such Underwriter may
in accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter thereunder, the Company agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter thereunder, such
Underwriter agrees to pay to the Company an amount equal to the ex-
-42-
cess of the dollars so purchased over the sum originally due to such Underwriter
thereunder.
EXHIBIT C
Supervisory Directors and Officers
Xxxxx X. Xxxxxxxxx
J. Xxxxxx Xxxxxx
J. Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Dr. L. Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxx Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. XxXxxxxx
Xxxxxxx X. Xxxxxxx
EXHIBIT D
Form of Loeff Xxxxxx Xxxxxxx Legal Opinion
We have acted as special counsel on matters of Netherlands law to Chicago Bridge
& Iron Company N.V. (the "Company") in connection with the offer for sale by
Praxair, Inc. (the "Selling Shareholder") of _______ Common Shares (the
"Shares") in the capital of the Company, under a Terms Agreement among the
Company, the Selling Shareholder and the several Underwriters dated _________,
1997, which Terms Agreement incorporates by reference the provisions of the
Underwriting Agreement filed as an exhibit to the Registration Statement (the
"Terms Agreement"). This legal opinion is rendered to you pursuant to clause
5(f) of the Underwriting Agreement.
Capitalized terms used but not defined herein are used as defined in the
Underwriting Agreement.
In rendering this opinion, we have examined and relied upon the following
documents:
1. A conformed copy of the Terms Agreement;
2. Copies of the Registration Statement on Form S-1, as filed with the
Securities and Exchange Commission (the "Commission") on ___________1997
and of the amendments thereto filed by the Company with the Commission on
_________1997 and ____________ 1997, respectively, relating to the offer of
the Shares, and copies of the related Prospectus, both in preliminary and
in final form (the "Prospectus", and, when in preliminary form, the
"Preliminary Prospectus").
3. An excerpt dated ________1997 of the registration of the Company in the
Trade Register of the Chamber of Commerce of Amsterdam;
4. The Articles of Association (statuten) of the Company as in effect on the
date hereof, dated _________ 1997 (the "Articles");
5. Copies of resolutions of the Board of Management of the Company adopted on
[ ] 1997 authorising, inter alia, the entering into the Underwriting
Agreement, the filing of the Registration Statement with the Commission
-2-
and the listing of the Shares on the Amsterdam and New York Stock
Exchanges;
6. A copy of the shareholders register of the Company (the "Company's
Shareholders Register";
7. An excerpt dated ________1997 of the registration of Chicago Bridge & Iron
Company B.V. ("CBICBV") in the Trade Register of the Chamber of Commerce of
Amsterdam;
8. The Articles of Association of CBICBV as in effect on the date hereof,
dated [ ] March 1997;
9. A copy of CBICBV's shareholders register (the "CBICBV Shareholder
Register");
and such other documents and such other laws, rules, regulations, and the like,
as we have deemed necessary as a basis for the opinions hereinafter expressed.
For the purpose of the opinions expressed herein, we have assumed:
(i) the genuineness of all signatures;
(ii) the conformity to the originals of all documents submitted to us as copies;
(iii)that (a) each party to the Terms Agreement other than the Company has all
requisite corporate power to execute and deliver, and to perform its
obligations under, the Terms Agreement, that (b) the Terms Agreement has
been or will be duly authorised, executed and delivered by or on behalf of
the parties thereto other than the Company and that (c) the Terms Agreement
is legal, valid and binding under the laws of the State of New York by
which it is expressed to be governed and is enforceable in accordance with
its terms;
(iv) that the resolutions referred to above under 5. will not be declared null
and void by a court (we know of no reason, without having made any
investigation, to suppose that such resolutions will be declared null and
void); and
(v) that the information contained in the Company's Shareholders Register and
the CBICBV Shareholders Register is correct and complete on the date
hereof.
-3-
Based upon the foregoing and subject to the qualifications and limitations
stated hereafter, we are of the opinion that:
A. The Company is a company duly incorporated for an unlimited period of time
and validly existing as a legal entity in the form of a public company with
limited liability ("naamloze vennootschap"). The Company has the corporate
power to conduct its business as described on page __ of the Prospectus
under the caption "The Company" (to the extent such description relates to
the Company). The Company has the corporate power to enter into the Terms
Agreement.
B. CBICBV (i) is a company duly incorporated for an unlimited period of time
and validly existing as a legal entity in the form of a close company with
limited liability ("besloten vennootschap met beperkte aansprakelijkheid")
and (ii) has the corporate power to conduct its business within the limits
of the objects clause in its Articles of Association. All of the
outstanding shares of CBICBV have been duly authorised, validly issued and
fully paid and are non-assessable. According to the CBICBV Shareholders
Register, all of CBICBV's issued share capital is owned directly by the
company, free from any liens and encumbrances.
C. The Company has taken all requisite corporate action to authorise the
execution by the Company of the Terms Agreement and the performance by the
Company of its obligations thereunder, to have its common shares listed on
the Amsterdam Stock Exchange.
D. The Terms Agreement has been duly executed by the Company and constitutes a
valid and legally binding instrument enforceable against the Company in
accordance with its terms. The Registration Statement has been duly
authorised and executed by the Company.
E. The compliance by the Company with all of the provisions of the Terms
Agreement and the consummation of the transactions therein contemplated and
of the Reorganisation will not result in any violation of the provisions of
the Articles, or the provisions of any published law, rule or regulation of
general application in the Netherlands, or, to the best of our knowledge
and solely on the basis of the documents provided to us by the Company, any
mortgage, indenture or other instrument or agreement to which the
-4-
Company is a party and which is material in the context of the offer of the
Shares.
F. The issued and outstanding common shares of the Company have been duly
authorised, validly issued and fully paid and are non-assessable. According
to the Company's Shareholders Register, immediately prior to the delivery
of the Shares by the Selling Shareholder in accordance with the provisions
of the Terms Agreement, such shares were owned directly by the Selling
Shareholder, free from any liens and encumbrances.
G. No approval, authorisation or other action by or filing with any
governmental authority is required in connection with the execution by the
Company of the Terms Agreement and the performance of its obligations
thereunder, except for (i) notice requirements to the Netherlands Central
Bank pursuant to the Act on Foreign Financial Relations (Wet Financiele
Betrekkingen Buitenland); and (ii) notice requirements to the Securities
Board of the Netherlands (Stichting Toezicht Effectenverkeer) pursuant to
the Act on Disclosure of Holdings in Listed Companies (Wet melding
zeggenschap in ter beurze genoteerde vennootschappen); however,
non-observance of these notice requirements does not render the Terms
Agreement void, nor does it affect the legality and validity of the
Company's common shares or the legality, validity or enforceability of the
Terms Agreement or the obligations of the Company thereunder.
H. Under the laws of the Netherlands, the Company would not in the courts of
the Netherlands be entitled to invoke immunity from jurisdiction or
immunity from execution on the grounds of sovereignty in respect of any
action arising out of its obligations under the Terms Agreement.
I. After due inquiry, we do not know of any legal or governmental proceedings
pending or threatened to which the Company is a party in the Netherlands.
J. The statements in the Prospectus under the captions "Dividend Policy",
"Management", "Description Of Share Capital", "Share Certificates and
Transfer" and "Service of Process and Enforcement of Civil Liabilities",
insofar as such statements constitute a description or summary of certain
provisions of Dutch law or the Company's Articles, fairly summarise the
matters referred to therein, and such captions do not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order
-5-
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
K. It is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Terms Agreement that any document be
filed, recorded or enrolled with any government department or other
authority in the Netherlands.
L. No stamp duty or similar tax or duty is or will be payable in the
Netherlands in connection with the offering of the Shares or in respect of
the execution of the Terms Agreement.
M. The statements in the Prospectus under the caption "Taxation - Netherlands
Taxes" accurately summarise the provisions of Dutch tax law described
therein.
N. Except as described in the Prospectus, under current laws and regulations
of the Netherlands and any political subdivision or taxing authority
thereof, all dividends and other distributions declared and payable on the
Shares (including, without limitation, dividend payments on any Shares in
the form of New York Shares) may be paid by the Company to the holder
thereof in United States dollars. Except as described in the Prospectus,
all such payments made to holders of the Shares who are non-residents of
the Netherlands will not be subject to income, withholding or other taxes
under laws and regulations of the Netherlands or any political subdivision
or taxing authority thereof or therein and will otherwise be free and clear
of any other tax, duty, withholding or deduction in the Netherlands or any
political subdivision or taxing authority thereof or therein and without
the necessity of obtaining any governmental authorisation in the
Netherlands or any political subdivision or taxing authority thereof or
therein.
O. The choice of the laws of the State of New York as the law governing the
Terms Agreement is valid and binding under the laws of the Netherlands,
except (i) to the extent that any term of the Terms Agreement, or any
provision of New York law applicable to the Terms Agreement is manifestly
incompatible with the public policy of the Netherlands, and except (ii)
that a Netherlands court may give effect to mandatory rules of the laws of
another jurisdiction with which the situation has a close connection, it
and insofar as, under the laws of that other jurisdiction
-6-
those rules must be applied, whatever the chosen law; with the express
reservation that we are not qualified to assess the exact meaning and
consequences of the terms of the Terms Agreement under New York law, none
of such terms on its face is manifestly incompatible with the public policy
of the Netherlands or should be expected to give rise to situations where
mandatory rules of Netherlands law will be applied by a Netherlands court
irrespective of the law otherwise applicable thereto.
P. In the absence of an applicable treaty between the United States of America
and the Netherlands, a judgment rendered by a New York court will not be
enforced by the courts in the Netherlands. In order to obtain a judgment
which is enforceable in the Netherlands the claim must be relitigated
before a competent Netherlands court. Notwithstanding the foregoing, a
judgment rendered by a New York court will, under current practice, be
recognised by a Netherlands court (i) if that judgment results from
proceedings compatible with Netherlands concepts of due process, and (ii)
if that judgment does not contravene public policy of the Netherlands. If
the judgment is recognized by a Netherlands court, that court will
generally grant the same claim without relitigation on the merits.
Q. The submission by the Company to the non-exclusive jurisdiction of the
courts in the Borough of Manhattan in the City of New York, with regard to
the Terms Agreement is valid and binding upon the Company under the laws of
the Netherlands, to the extent applicable, provided, however, that such
consent does not preclude that claims for provisional measures be brought
before the President of a competent district court in the Netherlands.
R. The Underwriters would be permitted to commence non-concurrent proceedings
against the Company in the competent Netherlands courts based upon the
Terms Agreement and such competent Netherlands courts would accept
Jurisdiction over any such proceedings.
S. By the due execution by the Selling Shareholder and the Underwriters of a
Deed of Transfer relating to the Shares sold by such Selling Shareholder to
the Underwriters pursuant to the Terms Agreement and the written
acknowledgement of such transfer by the Company, title to such shares will
under Netherlands law validly have been transferred to the Underwriters,
free from, subject to opinion F. above, all liens and encumbrances. To the
extent that
-0-
Xxxxxxxxxxx law is applicable, title to a Share in bearer form passes upon
delivery if the transferor has the authority to transfer title to the Share
and if the transfer is made pursuant to a valid agreement. Bearer Shares
held through Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.
(NECIGEF) (such as the Shares sold to the Managers under the Subscription
Agreement) are transferred in accordance with the provisions of the wet
Giraal Effectenverkeer
This opinion is subject to the following qualifications:
(a) The opinions expressed herein may be affected or limited by: (i) the
general defenses available to obligors under Netherlands law in respect of
the validity and enforceability of agreements and (ii) the provisions of
any applicable bankruptcy (faillissement), insolvency, fraudulent
conveyance (actio Pauliana), reorganisation, moratorium (surseance van
betaling), and other or similar laws of general application now or
hereafter in effect, relating to or affecting the enforcement or protection
of creditors' rights.
(b) The rights and obligations of the parties to the Terms Agreement are
subject to the principle of reasonableness and fairness (redelijkheid en
billijkheid), which under Netherlands law, to the extent applicable,
governs the relationship between the parties to a contract and which, in
certain circumstances, may limit or preclude the reliance on, or
enforcement of, contractual terms and provisions.
(c) The enforcement in the Netherlands of the Terms Agreement will be subject
to the rules of civil procedure as applied by the Netherlands courts.
Specific performance may not always be available under Netherlands law.
(d) We have assumed that the Shares or certificates thereof are produced with a
so called "white bar"; however, non-observance of this regulation does not
render the Shares void, nor does it affect the legality or validity of the
Shares.
(e) Under the laws of the Netherlands each power of attorney (volmacht) or
mandate (lastgeving), whether or not irrevocable, granted by the Company in
the Terms Agreement will terminate by force of law, and without notice,
upon insolvency or bankruptcy of the Company. To the extent that the
appointment by the Company of a process agent would be
-8-
deemed to constitute a power of attorney or a mandate, this qualification
would apply.
We express no opinion on any law other than the law of the Netherlands
(unpublished case law not included) as it currently stands. We express no
opinion on any laws of the European Communities (insofar as not implemented in
the Netherlands in statutes or other regulations of general application) or on
any anti-trust laws.
In this opinion Netherlands legal concepts are expressed in English terms and
not in their original Dutch terms. The concept concerned may not be identical to
the concepts described by the same English term as they exist under the laws of
other jurisdictions. This opinion may, therefore, only be relied upon under the
express condition that any issues of interpretation or liability arising
thereunder will be governed by Netherlands law and be brought before a
Netherlands court.
This opinion is strictly limited to the matters stated herein and may not be
read as extending by implication to any matters not specifically referred to.
Nothing in this opinion should be taken as expressing an opinion in respect of
any representations or warranties, or other information, contained in the Terms
Agreement, the Preliminary Prospectus or the Prospectus or any other document
examined in connection with this opinion except as expressly confirmed herein.
This opinion is addressed to you and may only be relied upon by you and your
U.S. counsel, Xxxxx Xxxxxxxxxx, in connection with the transactions to which the
Terms Agreement relate, and may not be relied upon by, or (except as required by
applicable law) be transmitted to, or filed with any other person, firm,
company, or institution without our prior written consent.
Yours truly,
CHICAGO BRIDGE & IRON COMPANY N.V.
Common Stock
TERMS AGREEMENT
, 1997
To: The Representatives of the Underwriters identified herein
Dear Sirs:
Praxair, Inc., a Delaware corporation, ("Selling Shareholder") agrees to
sell to the several Underwriters named in Schedule A hereto for their respective
accounts, on and subject to the terms and conditions of the Underwriting
Agreement filed as an exhibit to the registration statement of Chicago Bridge &
Iron Company N.V., a Netherlands corporation, ("Company") on Form S-1 (No.333- )
("Underwriting Agreement"), the following securities of the Company ("Offered
Securities") on the following terms:
Title: Common Shares, par value NLG 0.01
Number of Shares:
Purchase Price: $ per share
Closing: A.M. on , 1997, at ,
in Federal (same) funds.
Blackout: Until ______ days after the Closing Date.
Names and Addresses of Representatives
The respective numbers of shares of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of Xxxxx Xxxxxxxxxx, New York, New York at least 24 hours prior to
the Closing Date.
-2-
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments and stabilizing on the
inside front cover page of the prospectus supplement--and--, --the concession
and reallowance figures appearing in the paragraph under the caption
"Underwriting" in the prospectus supplement [If applicable, insert--; and (ii)
the following information in the prospectus supplement furnished on behalf of
[insert name of Underwriter]: [insert description of information, such as
material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].(1)
----------
1 Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
-3-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return an original executed copy to each of the Company and the
Selling Shareholder one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, the Selling Shareholder and the several
Underwriters in accordance with its terms.
Very truly yours,
CHICAGO BRIDGE & IRON COMPANY N.V.
By:
------------------------------------
[Insert title]
PRAXAIR, INC.
By
------------------------------------
[Insert title]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use
first confirmation form.
If co-representative, use second.]
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
------------------------------------
[Insert title]
[Acting on behalf of itself and
as the Representative of the
several Underwriters.]
CREDIT SUISSE FIRST BOSTON CORPORATION
---------------------------------------
-4-
[Acting on behalf of themselves
and as the Representatives of
the several Underwriters.]
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
------------------------------------
[Insert title]
SCHEDULE A
Number
of
Underwriter Shares
-----------------------
Total
-----------------------