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MT ACQUISITION CORP.
(a Delaware corporation)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ HOLDING INC.
(a Delaware corporation)
Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
Dated: October , 1996
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Table of Contents
PURCHASE
AGREEMENT..................................................................................................... 1
SECTION 1. Representations and
Warranties.................................................................................................... 4
a. Representations and Warranties by the Company and Holding................................... 4
i. Compliance with Registration Requirements.......................................... 4
ii. Independent Accountants............................................................ 5
iii. Financial Statements............................................................... 5
iv. No Material Adverse Change in Business............................................. 5
v. Good Standing...................................................................... 6
vi. Good Standing of Subsidiaries...................................................... 6
vii. Capitalization..................................................................... 7
viii. Authorization of Agreement......................................................... 7
ix. Authorization of the Indenture..................................................... 7
x. Authorization of the Securities.................................................... 8
xi. Description of the Securities and the Indenture.................................... 8
xii. Absence of Defaults and Conflicts.................................................. 8
xiii. Absence of Labor Dispute........................................................... 9
xiv. Absence of Proceedings............................................................. 9
xv. Accuracy of Exhibits............................................................... 10
xvi. Possession of Intellectual Property................................................ 10
xvii. Absence of Further Requirements.................................................... 10
xviii. Possession of Licenses and Permits................................................. 10
xix. Title to Property.................................................................. 11
xx. Compliance with Cuba Act........................................................... 11
xxi. Investment Company Act............................................................. 11
xxii. Environmental Laws................................................................. 11
xxiii. Registration Rights................................................................ 12
xxiv. Taxes.............................................................................. 12
xxv. Accounting Controls................................................................ 12
xxvi. Insurance.......................................................................... 13
xxvii. Solvency........................................................................... 13
xxviii. Events of Default.................................................................. 13
xxix. Stabilization or Manipulation...................................................... 13
xxx. Certain Relationships.............................................................. 13
xxxi. No Offering Material............................................................... 13
xxxii. Suppliers.......................................................................... 14
xxxiii. Assignment of Rights Under Acquisition Agreement................................... 14
b. Officer's Certificates...................................................................... 14
i
SECTION 2. Sale and Delivery to Underwriters; Closing........................................................ 14
a. Securities........................................................................................ 14
b. Payment..................................................................................... 14
c. Denominations; Registration................................................................. 15
SECTION 3. Covenants of the Company and Holding.............................................................. 15
a. Compliance with Securities Regulations and Commission Requests.............................. 15
b. Filing of Amendments........................................................................ 16
c. Delivery of Registration Statements......................................................... 16
d. Delivery of Prospectuses.................................................................... 16
e. Continued Compliance with Securities Laws................................................... 16
f. Blue Sky Qualifications..................................................................... 17
g. Rule 158.................................................................................... 17
h. Use of Proceeds............................................................................. 17
i. Restriction on Sale of Securities........................................................... 17
j. Reporting Requirements...................................................................... 18
SECTION 4. Payment of Expenses............................................................................... 18
a. Expenses.................................................................................... 18
b. Termination of Agreement.................................................................... 18
SECTION 5. Conditions of Underwriters' Obligations........................................................... 18
a. Effectiveness of Registration Statement..................................................... 19
b. Opinion of Counsel for Company.............................................................. 19
c. Opinion of Counsel for Underwriters......................................................... 19
d. Officers' Certificate....................................................................... 20
e. Accountant's Comfort Letter................................................................. 20
f. Bring-down Comfort Letter................................................................... 20
g. Maintenance of Rating....................................................................... 20
h. No Objection................................................................................ 21
i. Indenture................................................................................... 21
j. Credit Agreement............................................................................ 21
k. Acquisition................................................................................. 21
m. MTI Agreement............................................................................... 21
l. Solvency Opinion............................................................................ 21
n. Additional Documents........................................................................ 21
o. Termination of Agreement.................................................................... 22
SECTION 6. Indemnification.................................................................................... 22
a. Indemnification of Underwriters............................................................. 22
b. Indemnification of Company, Directors and Officers.......................................... 23
ii
c. Actions against Parties; Notification....................................................... 23
d. Settlement without Consent if Failure to Reimburse.......................................... 24
SECTION 7. Contribution...................................................................................... 24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................... 26
SECTION 9. Termination of Agreement.......................................................................... 26
a. Termination; General........................................................................ 26
b. Liabilities................................................................................. 26
SECTION 10. Default by One or More of the Underwriters....................................................... 26
SECTION 11. Notices.......................................................................................... 27
SECTION 12. Parties.......................................................................................... 27
SECTION 13. GOVERNING LAW AND TIME........................................................................... 28
SECTION 14. Effect of Headings............................................................................... 28
iii
MT ACQUISITION CORP.
(a Delaware corporation)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ HOLDING INC.
(a Delaware corporation)
$115,000,000
Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
October , ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CS First Boston Corporation
▇▇▇▇▇▇ Brothers Inc.
Scotia Capital Markets (USA) Inc.
as Representative(s) of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
MT Acquisition Corp., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Holding Inc., a Delaware corporation ("Holding"), confirm their
respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for
1
whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ First Boston Corporation, ▇▇▇▇▇▇ Brothers Inc. and Scotia
Capital Markets (USA) Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $115,000,000
aggregate principal amount of the Company's Senior Subordinated Notes due 2006
(the "Securities"). The Securities are to be issued pursuant to an indenture to
be dated as of October , 1996 (the "Indenture") among the Company, as issuer,
Holding, as guarantor, and United States Trust Company of New York, as trustee
(the "Trustee").
The Company and Holding were organized to effect the Acquisition (as
defined in the Registration Statement (as hereinafter defined)), pursuant to the
terms of the Stock Purchase Agreement, dated as of April 2, 1996, as amended
(the "Acquisition Agreement"), among MT Investors Inc. (formerly named AEA MT
Inc.), Ciba-Geigy AG ("Ciba") and AG fr Prazisioninstrumente, a wholly owned
subsidiary of Ciba ("AGP"). The proceeds of the sale of the Securities will be
used as part of the financing of the Acquisition. In the Acquisition, the
Company will acquire from AGP direct or indirect control of ▇▇▇▇▇▇▇-▇▇▇▇▇▇,
Inc., a Delaware corporation ("MTI"), ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Holding AG, a Swiss
corporation organized in connection with the Acquisition ("Swiss Subholding"),
and each of the entities listed in Note 1 to the audited combined financial
statements included in the Registration Statement (collectively, including MTI,
the "▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group"). The entities constituting the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
are hereinafter referred to collectively as the "▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
Companies," and each such entity is hereinafter referred to individually as a
"▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company."
Immediately following the consummation of the sale of the Securities
hereunder, the Company will be merged (the "Merger") with and into MTI, which
will become a wholly owned subsidiary of Holding. Upon consummation of the
Merger, MTI will succeed to, and assume by supplemental indenture (the
"Supplemental Indenture") to be dated the date of the Closing Time (as
hereinafter defined) all of the obligations of the Company under the Indenture
and the Securities, and will succeed to all of the obligations of the Company
hereunder.
Prior to or simultaneously with the issuance and sale of the
Securities, the Company and Swiss Subholding will enter into a credit agreement
(the "Credit Agreement") among the Company and Swiss Subholding, as borrowers,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as agent and arranger, the Bank of Nova
Scotia, as administrative agent, Credit Suisse and ▇▇▇▇▇▇ Commercial Paper Inc.,
as co-agents, and the other financial institutions party thereto, among other
things, to provide a portion of the financing of the Acquisition.
The Securities will be guaranteed by Holding on a senior subordinated
basis, pursuant to a guarantee included within the Indenture and the Securities
(the "Holding Guarantee"). The Holding Guarantee will be subordinated to, among
other things, the guarantee by Holding of the indebtedness incurred pursuant to
the Credit Agreement.
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The Company and Holding understand that the Underwriters propose to
make a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered and the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act").
The Company and Holding have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-9621) covering the registration of the Securities and the Holding Guarantee
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses. Promptly after execution and
delivery of this Agreement, the Company and Holding will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto, if any, at the
time it became effective and including the Rule 430A Information and the Rule
434 Information, as applicable, is herein called the "Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The final prospectus in the form first furnished
to the Underwriters for use in connection with the offering of the Securities is
herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus dated September 16, 1996 together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
3
SECTION 1. Representations and Warranties.
a. Representations and Warranties by the Company and Holding.
Each of the Company and Holding, jointly and severally, represents and warrants
to each Underwriter as of the date hereof, and as of the Closing Time referred
to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
i. Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company or Holding, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company and Holding will
comply with the requirements of Rule 434 and the Prospectus shall not
be "materially different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus, and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically
4
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
ii. Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
iii. Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly (A) the combined financial
position of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group at the dates indicated and the
combined statement of operations, changes in net assets and cash flows
of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group for the periods specified; (B) the
financial position of the Company at the date indicated and (C) the
consolidated financial position of Holding at the date indicated; said
financial statements have been prepared in conformity with U.S.
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
iv. No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group, considered as one enterprise,
whether or not arising in the ordinary course of business, and no
material adverse effect on the ability of the Company or Holding to
consummate the Acquisition, including the transactions contemplated
hereby, as the case may be (any such material adverse change or effect,
a "Material Adverse Effect"), (B) there have been no transactions
entered into by any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company, the Company or
Holding, other than those in the ordinary course of business, which are
material with respect to the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group, the Company or
Holding, respectively, and (C) there has been no dividend or
distribution of any kind declared, paid or made for or to Ciba or AGP
by any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company on any class of its capital stock.
5
v. Good Standing. Each of the Company and Holding has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and each of the
Company and Holding is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect. MTI has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and, upon consummation of the Merger, to
perform its obligations under this Agreement; and MTI is duly qualified
as a foreign corporation to transact business and is in good standing
in each other U.S. state in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
vi. Good Standing of Subsidiaries. Each of Swiss Subholding
and each ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company "significant subsidiary" (as
such term is defined in Rule 1-02 of Regulation S-X) of Holding (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each U.S. state in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by Ciba, directly or through subsidiaries, and upon consummation
of the Merger, will be owned by MTI, directly or through subsidiaries,
in each case free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (each a "Lien") except for any Lien
created pursuant to the Credit Agreement or local working capital
facilities permitted by the Credit Agreement securing the indebtedness
thereunder; and none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. The only subsidiaries of MTI
after giving effect to the Acquisition are the subsidiaries listed on
Exhibit 21 to the Registration Statement.
6
vii. Capitalization. The pro forma capitalization of the
Company at June 30, 1996, as adjusted to give effect to the
Acquisition, is as set forth in the Prospectus in the column entitled
"Pro Forma" under the caption "Capitalization." The shares of issued
and outstanding capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable; and are owned by
Holding free and clear of any Lien except for any Lien created pursuant
to the Credit Agreement or local working capital facilities permitted
by the Credit Agreement securing the indebtedness thereunder; and none
of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder thereof. Upon consummation of the Merger, the shares of
issued and outstanding stock of MTI and Swiss Subholding will be duly
authorized and validly issued, will be fully paid and non-assessable
and will be owned by Holding directly or through subsidiaries, free and
clear of any Lien except for any Lien created pursuant to the Credit
Agreement or local working capital facilities permitted by the Credit
Agreement securing the indebtedness thereunder; and none of the
outstanding shares of capital stock of MTI or Swiss Subholding will be
issued in violation of the preemptive or other similar rights of any
securityholder thereof.
viii. Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by each of the Company and
Holding.
ix. Authorization of the Indenture. The Indenture has been
duly authorized by the each of Company and Holding and duly qualified
under the 1939 Act and, when duly executed and delivered by the
Company, Holding and the Trustee, will constitute a valid and binding
agreement of each of the Company and Holding (and, upon consummation of
the Merger and execution and delivery of the Supplemental Indenture, of
MTI), enforceable against each of the Company and Holding (and, upon
consummation of the Merger and execution and delivery of the
Supplemental Indenture, of MTI) in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law). The Supplemental Indenture has been duly authorized by each of
MTI and Holding and, when duly executed and delivered by MTI, Holding
and the Trustee, will constitute a valid and binding agreement of each
of MTI and Holding, enforceable against each of MTI and Holding in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
7
x. Authorization of the Securities. The Securities and the
Holding Guarantee have been duly authorized and, at the Closing Time,
will have been duly executed by the Company and Holding, respectively,
and, when authenticated (in the case of the Securities), issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the
Company (and, upon consummation of the Merger and execution and
delivery of the Supplemental Indenture, of MTI) and of Holding,
respectively, enforceable against the Company (and, upon consummation
of the Merger and execution and delivery of the Supplemental
Indenture, against MTI) and against Holding, respectively, in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
xi. Description of the Securities and the Indenture. The
Securities, the Holding Guarantee and the Indenture will conform in
all material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the
respective forms filed as exhibits to the Registration Statement.
xii. Absence of Defaults and Conflicts. None of the
Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company
is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which any of them is a party or by which it or any of
them may be bound, or to which any of their respective properties or
assets is subject (collectively, "Agreements and Instruments") except
for such defaults that would not result in a Material Adverse Effect;
and, except as disclosed in the Registration Statement with respect to
business operations in China, the execution, delivery and performance
of this Agreement, the Indenture, the Supplemental Indenture, the
Securities and the Holding Guarantee and the consummation of the
transactions contemplated herein and in the Registration Statement
(including each of the transactions constituting the Acquisition, the
issuance and sale of the Securities and the Holding Guarantee and the
use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption "Use of Proceeds") and compliance by
each of the Company and Holding (and, upon consummation of the Merger
and execution and delivery of the Supplemental Indenture, by MTI) with
its obligations hereunder and under the Indenture, the Securities and
the Holding Guarantee, as the case may be, have been duly authorized
by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or
8
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, Holding, Swiss
Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company pursuant to, the
Agreements and Instruments (except for debt agreements which will be
repaid in full at the Closing and such other conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company, Holding,
Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company, Holding, Swiss Subholding or any
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, Holding,
Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company.
xiii. Absence of Labor Dispute. No labor dispute with the
employees of any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company exists or, to the
knowledge of the Company or Holding, is imminent, and neither the
Company nor Holding is aware of any existing or imminent labor
disturbance by the employees of any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company's
principal suppliers, manufacturers, customers or contractors, which,
in either case, might reasonably be expected to result in a Material
Adverse Effect.
xiv. Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or Holding, threatened, against or
affecting the Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Group Company which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
transactions constituting the Acquisition or the performance by the
Company or Holding (or, upon the consummation of the Merger, by MTI)
of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company, Holding, Swiss
Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company is a party or of which
any of their respective property or assets is the subject which are
not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
9
xv. Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which
have not been so described and filed as required.
xvi. Possession of Intellectual Property. The
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them,
except where the failure to so own, possess or acquire, singly and in
the aggregate, would not result in a Material Adverse Effect, and no
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company has received any notice or is other wise
aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
xvii. Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
Holding (or, upon consummation of the Merger and execution and
delivery of the Supplemental Indenture, by MTI) of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities or the Holding Guarantee hereunder or the consummation of
the transactions contemplated by this Agreement, for the due
execution, delivery or performance of the Indenture by the Company and
Holding (and upon consummation of the Merger and execution and
delivery of the Supplemental Indenture, by MTI), or for the
consummation of the transactions constituting the Acquisition, except
such as have been already made or obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws and
except for the qualification of the Indenture under the 1939 Act and
except as disclosed in the Registration Statement.
xviii. Possession of Licenses and Permits. The Company,
Holding, Swiss Subholding and the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except
for such Governmental Licenses the failure of which to possess would
not have a Material Adverse Effect; the Company, Holding, Swiss
Subholding and the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure
10
so to comply would not, singly, or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and none of
the Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
Company has received any written notice of any judicial or
administrative proceedings relating to the revocation or modification
of any such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
xix. Title to Property. The ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies
have good and marketable title to all real property owned by the
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company; or (c)
would not have a Material Adverse Effect; and all of the leases and
subleases material to the business of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group, and
under which any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company holds properties
described in the Prospectus, are in full force and effect, and no
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of any
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company under any of the leases or subleases
mentioned above, or affecting or questioning the rights of any
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company to the continued possession of the leased
or subleased premises under any such lease or sublease.
xx. Compliance with Cuba Act. Each of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Group Companies has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of
the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
xxi. Investment Company Act. None of the Company, Holding
or MTI is, or upon the consummation of the Acquisition, the issuance
and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will be,
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
xxii. Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) no ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Group Company is in violation of any federal, state, local or foreign
statute, law, regulation, ordinance, code, common law or any judicial
or administrative interpre-
11
tation thereof enforceable at law or in equity, including any
applicable judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products subject to regulation under any environmental law
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company or
Holding, threatened administrative, regulatory or judicial actions,
suits, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company and (D) to the knowledge
of the Company or Holding, there are no events or circumstances that
could reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against any
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company relating to Hazardous Materials or any
Environmental Laws.
xxiii. Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company, Holding or MTI under the 1933 Act.
xxiv. Taxes. The ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies have filed
all tax returns that are required to have been filed by them pursuant
to applicable law except insofar as the failure to file such returns
would not result in a Material Adverse Effect, and have paid all taxes
due pursuant to such returns or pursuant to any assessment received by
any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies, except for such taxes, if any, as
are being contested in good faith by appropriate proceedings and as to
which adequate reserves have been provided in accor dance with GAAP,
and except for the failure to pay such taxes which, individually and
in the aggregate, would not have a Material Adverse Effect. The
charges, accruals and reserves on the books of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Group in respect of any tax liability for any years not finally
determined are adequate in accordance with GAAP to meet any
assessments or reassessments for additional tax for any years not
finally determined, except to the extent of any inadequacy that would
not result in a Material Adverse Effect.
xxv. Accounting Controls. The ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
Companies maintain a system of internal accounting controls sufficient
to provide reasonable assurances that (A)transactions are executed in
accordance with management's general or specific authorization,
(B)transactions are recorded as necessary to permit preparation of
financial
12
statements in conformity with generally accepted accounting principles
and to maintain accountability for assets, (C)access to assets is
permitted only in accordance with management's general or specific
authorization and (D)the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
xxvi. Insurance. The ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies carry
or are entitled to the benefits of insurance, with financially sound
and reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and
effect.
xxvii. Solvency. Each of the Company, Holding, MTI and
Swiss Subholding is, and immediately after the Closing Time will be,
Solvent. As used herein, the term "Solvent" means, with respect to
such entity on a particular date, that on such date (A) the aggregate
fair market value of the assets of such entity is greater than the
total amount of liabilities (including contingent liabilities) of such
entity, (B) the present fair salable value of the assets of such
entity is greater than the amount that will be required to pay the
probable liabilities of such entity on its debts as they become
absolute and matured, (C) such entity is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature, and (D) such entity does not have
unreasonably small capital.
xxviii. Events of Default. No event of default exists under
any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument constituting Senior Indebtedness or
Guarantor Senior Indebtedness (in each case, as defined in the
Indenture).
xxix. Stabilization or Manipulation. Neither the Company
nor Holding has taken, directly or indirectly, any action designed to
cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of any such entity to
facilitate the sale or resale of the Securities.
xxx. Certain Relationships. No relationship, direct or
indirect, exists between or among any of the Company, Holding, Swiss
Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company or any affiliate of any
such entity, on the one hand, and any director, officer, stockholder,
customer or supplier of any of them, on the other hand, which is
required by the 1933 Act or by the 1933 Act Regulations to be
described in the Registration Statement or the Prospectus which is not
so described or is not described as required.
xxxi. No Offering Material. None of the Company, Holding,
Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company has distributed
and, prior to the later to occur of (i)the Closing Time and
(ii)completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering and
sale of the Securities other than the
13
Registration Statement, any preliminary prospectus, the Prospectus or
other materials, if any, permitted by the 1933 Act and approved by the
Representatives.
xxxii. Suppliers. No supplier of merchandise to any
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company has ceased shipments of merchandise
thereto, which cessation would result in a Material Adverse Effect.
xxxiii. Assignment of Rights Under Acquisition Agreement.
All rights of MT Investors Inc. (formerly named AEA MT Inc.) under the
Acquisition Agreement have been assigned to the Company and,
effective upon the Merger, to MTI, pursuant to an agreement a copy of
which has been furnished to counsel for the Underwriters.
b. Officer's Certificates. Any certificate signed by any
officer of the Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
Company delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by such entity to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
a. Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
b. Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (Eastern time) or as soon thereafter as practicable prior to 12:00
Noon on October 15, 1996 (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such
date as shall be agreed upon by the Representatives and the Company (such time
and date of payment and delivery being herein called "Closing Time"). For
purposes of Rule 15c6-1 under the Exchange Act, the Closing Time (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of Securities sold pursuant to the offering of
Securities contemplated hereby.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them.
14
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
c. Denominations; Registration. Certificates for the Securities
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time. The Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company and Holding. Each of the Company
and Holding, jointly and severally, covenants with each Underwriter as follows:
a. Compliance with Securities Regulations and
Commission Requests. The Company and Holding, subject to Section
3(b), will comply with the requirements of Rule 430A or Rule 434, as
applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment
to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company and Holding will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such
prospectus. The Company and Holding will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
b. Filing of Amendments. The Company and Holding will
give the Representatives notice of their intention to file or prepare
any amendment to the Registration Statement (including any filing
under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration
Statement at the
15
time it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
c. Delivery of Registration Statements. The Company
and Holding have furnished or will deliver to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates
of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
d. Delivery of Prospectuses. The Company and Holding
have delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested,
and the Company and Holding hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Company and Holding will
furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of
copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. If applicable, the Prospectus and
any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
e. Continued Compliance with Securities Laws. The
Company and Holding will comply with the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities (but in no event later than
nine months after the date of this Agreement) any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any
16
such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company and Holding will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Regilearn stration Statement or the
Prospectus comply with such requirements, and the Company and Holding
will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
f. Blue Sky Qualifications. The Company and Holding
will use their best efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the
Representatives may reasonably designate and to maintain such
qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; provided, however, that neither
the Company nor Holding shall be obligated to file any general consent
to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Securities have been so qualified,
the Company and Holding will file such statements and reports as may
be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
g. Rule 158. The Company and Holding will timely file
such reports pursuant to the 1934 Act as are necessary in order to
make generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
h. Use of Proceeds. The Company and Holding will use
the net proceeds received by them from the sale of the Securities in
the manner specified in the Prospectus under "Use of Proceeds".
i. Restriction on Sale of Securities. During a period
of 180 days from the date of the Prospectus, neither the Company nor
Holding will, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, issue, sell, offer or contract to sell, grant
any option for the sale of, or otherwise transfer or dispose of, or
register for sale by others, any debt securities other than the sale
of the Securities and indebtedness under the Credit Agreement and
local working capital facilities permitted by the Credit Agreement.
j. Reporting Requirements. The Company and Holding,
during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all
17
documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the
rules and regulations of the Commission thereunder.
SECTION 4. Payment of Expenses. a. Expenses. The Company and
Holding, jointly and severally, will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (ix) any fees payable in
connection with the rating of the Securities, and (x) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities.
b. Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company and Holding, jointly and severally, shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy in all
material respects of the representations and warranties of the Company and
Holding contained in Section 1 hereof or in certificates of any officer of the
Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company
delivered pursuant to the provisions hereof, to the performance by each of the
Company and Holding of its covenants and other obligations hereunder, and to
the following further conditions:
a. Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission,
18
and any request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company and
Holding have elected to rely upon Rule 434, a Term Sheet shall have
been filed with the Commission in accordance with Rule 424(b).
b. Opinion of Counsel for Company. At Closing Time,
the Representatives shall have received the favorable opinion, dated
as of Closing Time, of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the
Underwriters may reasonably request. At Closing Time, the
Representatives shall have received the favorable opinions, dated as
of Closing Time, and addressed to them on behalf of the Underwriters,
of any counsel delivered to any lenders under the Credit Agreement in
connection with the execution and delivery of the Credit Agreement or
the consummation of the Acquisition, or otherwise, or letters, dated
as of Closing Time, from such counsel entitling the Underwriters to
rely on such opinions, in each case as counsel for the Underwriters
may reasonably request, together with signed or reproduced copies of
such opinions or letters for each of the other Underwriters.
c. Opinion of Counsel for Underwriters. At Closing
Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters with respect to the matters set
forth in clauses (1), (2), (5) through (11), inclusive, and the fourth
paragraph from the end of Exhibit A hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State
of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, Holding,
Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company and certificates
of public officials.
d. Officers' Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or
a Vice President of the Company and of the chief financial or chief
19
accounting officer of each of the Company and Holding, in each case
dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Company and Holding, as the case may
be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such officer, no
proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
e. Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have received
from KPMG Fides Peat a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
f. Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from KPMG Fides Peat a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a
date not more than four business days prior to Closing Time.
g. Maintenance of Rating. At Closing Time, the
Securities shall be rated at least B2 by Moody's Investor's Service
Inc. and B by Standard & Poor's Corporation, and the Company shall
have delivered to the Representatives a letter dated the Closing Time,
from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings; and
since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any nationally recognized
securities rating agency, and no such securities rating agency shall
have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other debt
securities.
h. No Objection. The NASD shall not have raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
i. Indenture. The Indenture shall have been duly
executed and delivered by the Company, Holding and the Trustee, the
Securities and the Holding Guarantee shall have duly executed and
delivered by the Company and Holding, respectively, and the Securities
shall have been duly authenticated by the Trustee.
20
j. Credit Agreement. The Company and Swiss Subholding
shall have entered into the Credit Agreement providing for senior bank
financing in an aggregate principal amount of at least $275 million
pursuant to a term loan facility and at least $140 million pursuant to
a revolving credit facility, which Credit Agreement shall be
substantially in the form described in the Prospectus. No event of
default or event which with notice or passage of time or both would
constitute an event of default shall exist under the Credit Agreement;
and the lenders under the Credit Agreement shall have advanced funds
under the Credit Agreement in an amount sufficient to consummate the
Acquisition and provide working capital.
k. Acquisition. Prior to or simultaneously with
Closing Time, all of the conditions precedent to the consummation of
the Acquisition shall have been fulfilled (except to the extent any
such conditions have been waived with the prior consent of the
Representatives); except as disclosed in the Registration Statement
with respect to business operations in China, all necessary consents
to consummate the Acquisition shall have been obtained and shall be in
full force and effect; and each of the transactions constituting the
Acquisition, including, without limitation, the Merger, shall have
been consummated.
l. Solvency Opinion. Prior to or at Closing Time, the
Representatives shall have received a solvency letter of an
independent evaluation firm, in form and substance satisfactory to the
Representatives.
m. MTI Agreement. Simultaneously with Closing Time,
MTI, Holding and the Underwriters shall have executed and delivered an
agreement, in form and substance satisfactory to the Representatives,
whereby MTI will become a party to this Agreement and be subject to
the obligations of this Agreement as if MTI were the Company.
n. Additional Documents. At Closing Time, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Company, Holding and MTI in connection with the issuance and sale of
the Securities and the Holding Guarantee as herein contemplated shall
be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
o. Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time, and such termination shall be without liability of any
party to any other party except as provided
21
in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
a. Indemnification of Underwriters. Each of the Company and
Holding, jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
i. against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
ii. against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
iii. against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any
22
amendment or supplement thereto) and (b) with respect to any preliminary
prospectus to the extent that any such loss, liability, claim, damage or
expense of such Underwriter results solely from the fact that such Underwriter
sold Securities to a person as to whom the Company shall establish that there
was not sent by commercially reasonable means, at or prior to the written
confirmation of such sale, a copy of the Prospectus in any case where such
delivery is required by the 1933 Act, if the Company has previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss,
liability, claim, damage or expense of such Underwriter results from an untrue
statement or omission of a material fact contained in the preliminary
prospectus that was corrected in the Prospectus.
b. Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
c. Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
23
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
d. Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Holding on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 Holding
on the one hand and of the Underwriters on the other hand in connection with
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and Holding on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company and Holding on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact
24
relates to information supplied by the Company or Holding or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, Holding and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company and Holding, each officer of the Company and
Holding who signed the Registration Statement, and each person, if any, who
controls the Company and Holding within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company and Holding, respectively. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, Holding, Swiss
Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company or Holding, and shall survive delivery of the Securities
to the Underwriters.
25
SECTION 9. Termination of Agreement.
a. Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company or Holding or the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group Companies
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or Switzerland or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or Swiss authorities.
b. Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then (a)
if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or (b) if the number of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased
hereunder, then this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
26
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Syndicate
Operations, with a copy to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇; and notices to the Company or
Holding shall be directed to the Company at Park Avenue Tower, 65 East 55th
Street, 27th Floor, New York, New York 10022, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
and at ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇-▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, attention
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, Holding and their respective
successors, including, without limitation, MTI as the successor to the Company
in the Merger. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and Holding and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the Underwriters, the
Company and Holding and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and Holding in accordance with
its terms.
Very truly yours,
MT ACQUISITION CORP.
By
------------------------------
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇ HOLDING INC.
By
------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CS FIRST BOSTON CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
SCOTIA CAPITAL MARKETS (USA) INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
-----------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
28
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............................................................
CS First Boston Corporation...............................................................
▇▇▇▇▇▇ Brothers Inc.......................................................................
Scotia Capital Markets (USA) Inc..........................................................
------------
Total..................................................................................... $115,000,000
============
Sch A-1
SCHEDULE B
MT ACQUISITION CORP.
$115,000,000 Senior Subordinated Notes due 2006
1. The initial public offering price of the Securities shall be
___% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be ___% of the principal amount thereof.
3. The interest rate on the Securities shall be ___% per annum.
4. The Securities shall be redeemable at the option of the
Company, in whole or in part, at any time on or after ____________, 2001, and
prior to maturity, at the following redemption prices (expressed as percentages
of principal amount), plus accrued interest, if any, to the redemption date, as
further provided in the Indenture, if redeemed during the 12-month period
beginning on _____________ of the years set forth below:
Year Redemption Price
2001.......................................................................... %
2002.......................................................................... %
2003.......................................................................... %
2004 and thereafter........................................................... 100.0%
In addition, at any time and from time to time on or prior to
__________, 1999, the Company may redeem in the aggregate up to $40 million of
the original principal amount of the Securities with the proceeds of one or more
Public Equity Offerings (as defined in the Indenture), in each case which yields
gross proceeds to the Company (before discounts, commissions and expenses) of at
least $65 million and following which there is a Public Market (as defined in
the Indenture), at a redemption price (expressed as a percentage of the
principal amount thereof) of _____%, plus accrued interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date),
provided that at least $75 million in aggregate principal amount of the
Securities must remain outstanding after such redemption, as further provided in
the Indenture.
Sch B-1
Exhibit A
FORM OF OPINION OF FRIED, FRANK, HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
October__, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CS First Boston Corporation
▇▇▇▇▇▇ Brothers Inc.
Scotia Capital Markets (USA) Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We are acting as special counsel to each of ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Holding Inc.
("Holding") and MT Acquisition Corp. (the "Company", together with Holding, the
"Registrants"), each a Delaware corporation, in connection with the underwritten
public offering of $115 million aggregate principal amount of the Company's __%
Senior Subordinated Notes due 2006 (the "Securities"), pursuant to a Purchase
Agreement, dated as of October __, 1996, among the Registrants, ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, CS First Boston
Corporation, ▇▇▇▇▇▇ Brothers Inc. and Scotia Capital Markets (USA), Inc. (the
"Purchase Agreement"). This opinion is being delivered pursuant to Section 5(b)
of the Purchase Agreement and simultaneously with the payment by the
Underwriters to the Company for the Securities. Except as provided herein, all
capitalized terms used herein which are defined in the Purchase Agreement have
the respective meanings specified therein.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Registrants and their respective subsidiaries, such certificates of public
officials and such other documents, and (iii) reviewed such information
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from officers and representatives of the Registrants and their respective
subsidiaries and others, in each case, as we have deemed necessary or
appropriate for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all
natural persons executing documents, the genuineness of all signatures on
original or certified copies, the authenticity of all original or certified
copies and the conformity to original or certified documents of all copies
submitted to us as conformed or reproduction copies. As to various questions of
fact relevant to the opinions expressed herein, we have relied upon, and assume
the accuracy of, the statements made in the certificates of officers of the
Registrants delivered to us, the representations and warranties contained in the
Purchase Agreement and certificates and oral or written statements and other
information of or from public officials and officers and representatives of the
Registrants, their respective subsidiaries and others, and assume compliance on
the part of all parties to the Purchase Agreement with their covenants and
agreements contained therein. With respect to the opinions expressed in
paragraph 3 below, we have relied solely upon a certificate or certificates of
public officials of such jurisdictions, copies of which have been provided to
you.
We have assumed, for purposes of the opinions expressed herein, that
(i) the Trustee has the power and authority to enter into and perform the
Indenture and the Supplemental Indenture, (ii) the Indenture and the
Supplemental Indenture have been duly authorized, executed and delivered by the
Trustee and are valid, binding and enforceable upon the Trustee, and (iii) the
Securities have been duly authenticated by the Trustee. With respect to the
opinion expressed in paragraph 10 below regarding the effectiveness of the
Registration Statement and the absence of any stop orders or proceedings for
that purpose, we are relying upon the oral advice of the staff of the Securities
and Exchange Commission (the "Commission").
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
1. Each of the Company, Holding and MTI is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. Each of the Company and Holding has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under the Purchase Agreement. MTI has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and, upon consummation of the Merger, to perform its obligations
under the Purchase Agreement.
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3. Each of the Company, Holding and MTI is duly qualified as a
foreign corporation to transact business and is in good standing in the states
listed on the schedule to be attached to this opinion.
4. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable and, to our knowledge, are owned by Holding free and clear of any
Lien except for any Lien created pursuant to the Credit Agreement and any local
working capital facilities secured under the security documents to the Credit
Agreement (the "Working Capital Facilities"), and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company. Upon consummation of
the Merger, the shares of issued and outstanding stock of MTI will be duly
authorized and validly issued, will be fully paid and non-assessable and, to
our knowledge, will be owned by Holding, free and clear of any Lien except for
any Lien created pursuant to the Credit Agreement and the Working Capital
Facilities.
5. The Purchase Agreement has been duly authorized, executed and
delivered by each of the Company and Holding.
6. The Indenture has been duly authorized, executed and delivered
by the Company and Holding and constitutes a valid and binding agreement of each
of the Company and Holding (and, upon consummation of the Merger and the
execution and delivery of the Supplemental Indenture, of MTI), enforceable
against each of the Company and Holding (and, upon consummation of the Merger
and the execution and delivery of the Supplemental Indenture, of MTI) in
accordance with its terms. The Supplemental Indenture has been duly authorized
by each of MTI and Holding and (upon the due execution and delivery thereof by
MTI, Holding and the Trustee) constitutes a valid and binding agreement of each
of MTI and Holding, enforceable against each of MTI and Holding in accordance
with its terms.
7. The Securities and the Holding Guarantee are in the forms
contemplated by the Indenture, have been duly authorized by the Company and
Holding, respectively, and the Securities and the Holding Guarantee have been
duly executed and delivered by the Company and Holding, respectively, and
constitute valid and binding obligations of the Company and Holding,
respectively, enforceable against the Company and Holding, respectively, in
accordance with their terms.
8. The Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
9. The Securities, the Holding Guarantee and the Indenture
conform in all material respects to the descriptions thereof contained in the
Prospectus.
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10. The Registration Statement[, including any Rule 462(b)
Registration Statement,] has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement [or any Rule 462(b) Registration Statement] has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
11. The Registration Statement[, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable,] the Prospectus [and each amendment or supplement to the
Registration Statement and Prospectus] as of their respective effective or issue
dates (other than the financial statements, notes and schedules thereto and
other financial data included therein or omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
12. The information in the Prospectus under "Description of Credit
Agreement" and "Description of Notes", insofar as such information constitutes a
summary of documents referred to therein, has been reviewed by us and is correct
in all material respects.
13. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any New York, Delaware or
federal court or governmental authority or New York, Delaware or federal agency,
domestic or foreign (other than under the 1933 Act, the 1933 Act Regulations,
the 1934 Act, the 1934 Act Regulations and the 1939 Act, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, as to which we express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery or performance of the Indenture or the
Supplemental Indenture by the Company, Holding or MTI, as the case may be, or
for the offering, issuance, sale or delivery of the Securities or the Holding
Guarantee.
14. The execution, delivery and performance of the Purchase
Agreement, the Indenture, the Supplemental Indenture, the Securities and the
Holding Guarantee and the consummation of the transactions contemplated in the
Purchase Agreement, including each of the transactions constituting the
Acquisition, and compliance by each of the Company and Holding (and, upon
consummation of the Merger and execution and delivery of the Supplemental
Indenture, by MTI) with its obligations under the Purchase Agreement, the
Indenture, the Securities and the Holding Guarantee, as the case may be, do not
and will not, whether with or without the giving of notice or lapse of time or
both, conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section l (a)(xii) of the Purchase Agreement) under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company, Holding, Swiss Subholding or any ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group
Company pursuant to any agreements filed
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as Exhibits to the Registration Statement (except for Liens under the Credit
Agreement and the Working Capital Facilities and such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company, Holding or MTI, or any applicable
New York, Delaware or federal law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any New York, Delaware or federal government,
government instrumentality or court.
15. None of the Company, Holding or MTI is an "investment company"
as such term is defined in the 1940 Act.
16. Neither the issuance, sale or delivery of the Securities nor
the application of the proceeds thereof by the Company as set forth in the
Prospectus will violate Regulations G, T, U or X of the Board of Governors of
the Federal Reserve System.
In addition, in the course of the preparation by the Registrants of the
Registration Statement and the Prospectus, we participated in conferences with
certain of the officers and representatives of, and the independent public
accountants for the Registrants, at which the Registration Statement and the
Prospectus were discussed. Between the date of effectiveness of the
Registration Statement and the time of delivery of this letter, we attended
additional conferences with certain of the officers and representatives of the
Registrants, at which the contents of the Registration Statement and Prospectus
were discussed to a limited extent. Given the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process, we are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except as specified
in paragraph 12. Subject to the foregoing and on the basis of the information
gained in the performance of the services referred to above, including
information obtained from officers and other representatives of, and the
independent public accountants for the Registrants, no facts have come to our
attention that cause us to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus as of its
date contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Also, subject to the foregoing, no facts have come to our
attention in the course of proceedings described in the second sentence of this
paragraph that cause us to believe that the Prospectus, as of the date and time
of delivery of this letter, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances in which
they were made, not misleading. We express no view or belief, however, with
respect to financial statements, notes or schedules thereto or other financial
data
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included in or omitted from the Registration Statement or Prospectus or with
respect to the Form T-1 filed as an Exhibit to the Registration Statement.
The opinions set forth above are subject to the following additional
qualifications and assumptions:
(A) Our opinion is subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness), whether
such principles are considered in a proceeding at law or equity.
(B) Our opinion is subject to the effect of, and we express no
opinion with respect to the application of or compliance with, state securities
or Blue Sky laws.
(C) For purposes of paragraphs 13 and 14 above, we have reviewed
only those statutes, rules and regulations that in our experience are normally
applicable to transactions of the type contemplated by the Indenture, the
Holding Guarantee and the Purchase Agreement.
The opinions expressed herein are limited to the federal laws of the
United States of America, the General Corporation Law of the State of Delaware
and the laws of the State of New York, as currently in effect. We assume no
obligations to supplement this letter if any applicable laws change after the
date hereof or if we become aware of any facts that might change the opinions
expressed herein after the date hereof.
The opinions expressed herein are solely for your benefit and may not
be relied upon in any manner or for any purpose by any other person and may not
be quoted in whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
By:_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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