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Exhibit 1.2
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
900,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: February __, 1997
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Exhibit 1.2 S&S DRAFT
1/23/97
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
900,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
February __, 1997
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
As Representatives of the several International Underwriters
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 X0XX
Ladies and Gentlemen:
The stockholders of Xxxx-Xxxxxx Automotive, Inc., a Delaware
corporation (the "Company"), named in Schedule A (collectively, the "Selling
Stockholders") propose to sell severally and not jointly to the underwriters
named in Schedule B (collectively, the "International Underwriters", which shall
also include any person substituted for an International Underwriter under
Section 11 hereof), for whom you are acting as representatives (the
"International Representatives"), an aggregate of 900,000 outstanding shares
of Common Stock of the Company, par value $.01 per share (shares of which class
of stock of the Company are hereinafter referred to as "Common Stock"). Such
shares of Common Stock are to be sold to each International Underwriter, acting
severally and not jointly, in such amounts as are set forth in Schedule B hereto
opposite the name of such International Underwriter. The Selling Stockholders
also grant to the International Underwriters, severally and not jointly, the
option described in Section 2 to purchase all or any part of 126,907
additional shares of Common Stock to cover over-allotments. The aforesaid
900,000 shares of Common Stock (the "Initial International Shares"), together
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with all or any part of the 126,907 additional shares of Common Stock subject
to the option described in Section 2 (the "International Option Shares"), are
collectively herein called the "International Shares". The International Shares
are more fully described in the International Prospectus referred to below.
It is understood that the Company is concurrently entering into an
agreement, dated the date hereof (the "U.S. Purchase Agreement"), providing for
the sale by the Selling Stockholders of 3,600,000 shares of Common Stock (the
"Initial U.S. Shares") through arrangements with certain underwriters within the
United States and Canada (the "U.S. Underwriters"), for whom Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Brothers Inc. and Xxxxxx Xxxxxxx &
Co. Incorporated are acting as representatives (the "U.S. Representatives"). It
is further understood that the Selling Stockholders are concurrently granting
the U.S. Underwriters an option to purchase all or any part of 507,627
additional shares of Common Stock (the "U.S. Option Shares") from the Selling
Stockholders to cover over-allotments. The U.S. Shares and the U.S. Option
Shares are hereinafter collectively referred to as the "U.S. Shares". The
International Shares and the U.S. Shares are hereinafter collectively referred
to as the "Shares".
The Company understands that the International Underwriters will
simultaneously enter into an agreement with the U.S. Underwriters dated the date
hereof (the "Intersyndicate Agreement") providing for the coordination of
certain transactions among the International Underwriters and the U.S.
Underwriters, under the direction of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
You have advised us that you and the other International
Underwriters, acting severally and not jointly, desire to purchase the
International Shares and that you have been authorized by the other
International Underwriters to execute this Agreement and the International Price
Determination Agreement referred to below on their behalf.
The price to the public per share for the International Shares and
the purchase price per share for the International Shares shall be agreed upon
by the Selling Stockholders and the International Representatives, acting on
behalf of the several International Underwriters, and such agreement shall be
set forth in a separate written instrument substantially in the form of Exhibit
A hereto (the "International Price Determination Agreement"). The International
Price Determination Agreement may take the form of an exchange of any standard
form of written telecommunication between the Selling Stockholders and the
International Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the International Shares will
be governed by this Agreement, as supplemented by the International Price
Determination Agreement. From and after the date of the execution and delivery
of the International Price Determination Agreement, this Agreement shall be
deemed to incorporate, and all reference
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herein to "this Agreement" shall be deemed to include, the International Price
Determination Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-_____) covering the registration of the Shares under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectuses, and either (A) has prepared and proposes to file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including final prospectuses, or (B) if the Company has elected to
rely upon Rule 430A ("Rule 430A") of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), will prepare and file
prospectuses, in accordance with the provisions of Rule 430A and Rule 424(b)
("Rule 424(b)") of the 1933 Act Regulations, promptly after execution and
delivery of the U.S. Price Determination Agreement. Two forms of prospectus are
to be used in connection with the offering and sale of the Shares: one relating
to the International Shares (the "Form of International Prospectus") and one
relating to the U.S. Shares (the "Form of U.S. Prospectus"). The Form of U.S.
Prospectus is identical to the Form of International. Prospectus, except for the
front cover page, inside front cover page, the sections captioned "Underwriting"
and "Available Information" and the back cover page. Additionally, if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, the Company will prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b), promptly after
execution and delivery of the International Price Determination Agreement. The
information, if any, included in such prospectuses that was omitted from any
prospectuses included in such registration statement at the time it becomes
effective but that is deemed, (i) pursuant to paragraph (b) of Rule 430A, to be
part of such registration statement at the time it becomes effective is referred
to herein as the "Rule 430A Information", and (ii) pursuant to paragraph (d) of
Rule 434, to be part of such registration statement at the time it becomes
effective is referred to herein as "Rule 434 Information". Each Form of
International Prospectus and Form of U.S. Prospectus used before the time such
registration statement becomes effective, and any Form of International
Prospectus and Form of U.S. Prospectus that omits the Rule 430A Information or
the Rule 434 Information, if applicable, that is used after such effectiveness
and prior to the execution and delivery of the International Price Determination
Agreement or the U.S. Price Determination Agreement, is herein called a
"preliminary prospectus". Such registration statement, including the exhibits
thereto and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act ("Item 12"), as amended, and Rule 412 of the 1933
Act Regulations ("Rule 412") at the time it becomes effective and including, if
applicable, the Rule 430A Information or the Rule 434 Information, is herein
called the "Original 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 the Original Registration Statement
and any Rule 462(b) Registration Statement are herein referred to collectively
as the "Registration
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Statement". The Form of International Prospectus and Form of U.S. Prospectus,
including the documents incorporated by reference therein pursuant to Item 12
and Rule 412, included in the Original Registration Statement at the time it
becomes effective, are herein called the "International Prospectus" and the
"U.S. Prospectus", respectively, and, collectively, the "Prospectuses", and,
individually, a "Prospectus", except that, (i) if the final International
Prospectus or U.S. Prospectus, as the case may be, first furnished to the
International Underwriters or the U.S. Underwriters after the execution of the
International Price Determination Agreement or the U.S. Price Determination
Agreement for use in connection with the offering of the Shares differs from the
prospectuses included in the Original Registration Statement at the time it
becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the terms "International Prospectus", "U.S.
Prospectus", "Prospectuses" and "Prospectus" shall refer to the final
International Prospectus or U.S. Prospectus first furnished to the International
Underwriters or the U.S. Underwriters, as the case may be, for such use, and
(ii) if Rule 434 is relied upon, the terms "International Prospectus", "U.S.
Prospectus", "Prospectuses" and "Prospectus" shall refer to the preliminary
International Prospectus or U.S. Prospectus last furnished to the International
Underwriters or the U.S. Underwriters, as the case may be, in connection with
the offering of the Shares, in each case together with the Term Sheet.
The Company and the Selling Stockholders understand that the
International Underwriters propose to make a public offering of the
International Shares as soon as you deem advisable after the Registration
Statement becomes effective and the International Price Determination Agreement
has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the International
Underwriters and each of the Selling Stockholders that:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and when the Registration Statement or any post-effective
amendment thereto shall become effective and at all times subsequent
thereto up to the Closing Time referred to below (and, if any
International Option Shares are purchased, up to the Date of Delivery
referred to below), (A) the Registration Statement and the Prospectuses,
including any amendments and supplements thereto, will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations; (B) neither the Registration Statement nor any amendment or
supplement thereto will 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; (C) neither of the
Prospectuses nor any amendment or supplement thereto will include an
untrue statement of a material fact or 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; and (D) if Rule
434 is relied upon, the Prospectuses
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shall not be "materially different", as such term is used in Rule 434,
from the prospectuses included in the Registration Statement at the time
it becomes effective; except that this representation and warranty does
not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any International Underwriter or U.S. Underwriter through you or
the U.S. Representatives expressly for use in the Registration Statement
or the Prospectuses or any amendment or supplement thereof.
(ii) The documents incorporated by reference in the Prospectuses
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
becomes effective and at all times subsequent thereto up to the Closing
Time (as hereinafter defined) (and, if any Option Shares are purchased, up
to the Date of Delivery (as hereinafter defined)), will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(iii) (A) Deloitte & Touche LLP, who have certified the financial
statements of the Company and the schedules included or incorporated by
reference in the Registration Statement and Prospectuses, (B) KPMG Peat
Marwick, who have certified the financial statements of NSK-Xxxxxx X.X.
("NSK-Warner") included or incorporated by reference in the Registration
Statement and the Prospectuses and (C) Xxxxxx Xxxxxxxx LLP, who have
certified the financial statements of Xxxxxx Automotive Inc, Xxxxxx
Automotive Group, Ltd., Xxxxxx Automotive Systems GmbH, Coltec Automotive
Inc, and Performance Friction Products, a division of Stemco Inc, an
indirect, wholly-owned subsidiary of Coltec Industries Inc. (collectively,
the "Coltec Subsidiaries"), included or incorporated by reference in the
Registration Statement and the Prospectuses, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement; and
this Agreement has been duly authorized, executed and delivered by the
Company.
(v) The consolidated financial statements and the related notes of
the Company, its Subsidiaries (as defined below) and the Coltec
Subsidiaries included or incorporated by reference in the Registration
Statement present fairly the consolidated financial position of the
Company, its Subsidiaries and the Coltec Subsidiaries as of the dates
indicated and the consolidated earnings and cash flows of the Company, its
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Subsidiaries and the Coltec Subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved (except as set forth in the notes thereto) and
subject, in the case of any interim statements, to normal year-end audit
adjustments. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial data included or incorporated by
reference in the Prospectuses present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by reference in
the Registration Statement. The pro forma financial information included
or incorporated by reference in the Prospectuses present fairly the
information shown therein, has been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X, has been properly
compiled on the pro forma bases described therein, and, in the opinion of
the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
(vi) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectuses.
The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and the Subsidiaries, considered as one
enterprise.
(vii) The Company's only subsidiaries are set forth in Exhibit B
hereto (each such corporation is referred to herein as a "Subsidiary" and,
collectively, the "Subsidiaries"). Each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business; and each Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries, considered as
one enterprise. All of the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company, directly or through one
or more of the Subsidiaries, in the percentages set forth in Exhibit B
hereto, free and
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clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind.
(viii) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectuses under the
caption "Capitalization".
(ix) The Shares have been duly authorized and validly issued and are
fully paid and non-assessable; no holder thereof will be subject to
personal liability by reason of being such a holder; and such Shares are
not subject to the preemptive rights of any stockholder of the Company.
(x) All of the other outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectuses, except as described in
the Registration Statement or any amendment or supplement thereto, there
has not been (A) any material adverse change in the condition (financial
or otherwise), results of operations, business affairs or business
prospects of the Company and the Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any Subsidiary, other than
in the ordinary course of business, that is material to the Company and
the Subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, other than regular quarterly cash dividends declared or
paid on its Common Stock.
(xii) Neither the Company nor any of its Subsidiaries is in
violation of its certificate of incorporation or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by which
it may be bound or to which any of its properties may be subject, except
for such defaults that would not have a material adverse effect on the
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise. The execution and delivery of this Agreement
and the U.S. Purchase Agreement by the Company, the consummation by the
Company of the transactions contemplated in this Agreement, the U.S.
Purchase Agreement, and the Registration Statement and compliance by the
Company with the terms of this Agreement and the U.S. Purchase Agreement
have
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been duly authorized by all necessary corporate action on the part of the
Company and do not violate and will not result in any violation of the
certificate of incorporation or by-laws of the Company or any Subsidiary,
and do not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which
any of them may be bound or to which any of their properties may be
subject, except for such conflicts, breaches or defaults or liens, charges
or encumbrances that in the aggregate would not have a material adverse
effect on the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that in the aggregate would not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise.
(xiii) No authorization, approval, consent or license of, or any
material filing with, any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations and the securities or Blue Sky laws of the various states, the
securities laws of Canada and its provinces and the securities laws of any
jurisdiction outside the United States in which International Shares are
offered or sold by the International Underwriters pursuant to this
Agreement), is legally required for the valid authorization, issuance,
sale and delivery of the Shares.
(xiv) Except as disclosed or incorporated by reference in the
Prospectuses, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against the
Company or any Subsidiary that is required to be disclosed in the
Prospectuses or that could result in any material adverse change in the
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, or that could reasonably be expected to
adversely affect the consummation of the transactions contemplated by this
Agreement and the U.S. Purchase Agreement.
(xv) There are no contracts or documents of a character required
pursuant to the 1933 Act to be described in the Registration Statement or
the Prospectuses or to
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be filed as exhibits to the Registration Statement that are not described
and filed as required.
(xvi) Each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the
Prospectuses as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectuses or (B) are neither material in amount nor materially
significant in relation to the business of the Company and the
Subsidiaries, considered as one enterprise; all of the leases and
subleases material to the business of the Company and the Subsidiaries,
considered as one enterprise, and under which the Company or any
Subsidiary holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any Subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xvii) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations, and has made all
filings with all governmental authorities, necessary to own or lease, as
the case may be, and to operate its properties and to carry on its
business as presently conducted, and neither the Company nor any
Subsidiary has received any notice of proceedings relating to revocation
or modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations, which, singly or in the aggregate, if
not so owned, possessed or obtained or the subject of an unfavorable
ruling, decision or finding, could materially adversely affect the
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise.
(xviii) The Company and the Subsidiaries each owns or possesses, or
can acquire on reasonable terms, adequate patents, patent licenses,
trademarks, service marks and trade names necessary to carry on its
business as presently conducted, and neither the Company nor any
Subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could reasonably be
expected to materially adversely affect the condition (financial or
otherwise), results of operations, business affairs or business prospects
of the Company and the Subsidiaries, considered as one enterprise.
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(xix) Except as disclosed in the Prospectuses, to the best knowledge
of the Company, no labor problem exists with its employees or with
employees of the Subsidiaries or is imminent that could reasonably be
expected to materially adversely affect the Company and the Subsidiaries,
considered as one enterprise and, to the knowledge of the Company, except
as disclosed in the Prospectuses, the Company is not aware of any material
existing or imminent labor dispute by the employees of any of its or the
Subsidiaries' principal customers that could be expected to materially
adversely affect the Company and the Subsidiaries, considered as one
enterprise.
(xx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock.
(xxi) Except as disclosed in the Registration Statement and except
as would not individually or in the aggregate have a material adverse
effect on the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise, (A) the Company and the
Subsidiaries are each in compliance with all applicable Environmental
Laws, (B) the Company and the Subsidiaries 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 threatened Environmental Claims against the Company or any
Subsidiary, and (D) there are no circumstances with respect to any
property or operations of the Company or the Subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Subsidiaries.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
(xxii) All United States federal income tax returns of the Company
(and any of the Subsidiaries, if not included in the Company's U.S.
consolidated federal income tax return) required by law to be filed have
been properly prepared and filed, and all taxes shown on such returns or
otherwise assessed which are due and payable
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have been paid. All of the Company's United States federal tax returns
(and any of the Subsidiaries' tax returns, if applicable) for taxable
periods through and including the 1992 federal taxable year have been
audited by the Internal Revenue Service or the statute of limitations for
such taxable years has run and thus, all taxes for such periods have been
finally determined (excluding the effect of any net operating loss or
credit carryovers to such periods). All other tax returns of the Company
and the Subsidiaries required to be filed pursuant to applicable foreign,
state, local or other law have been filed, except insofar as the failure
to file such returns would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and the Subsidiaries, considered as one
enterprise. The Company and the Subsidiaries have paid (or there has been
paid on their behalf) all taxes which are due and for which no tax return
is required. There are no liens on any of the Company's or the
Subsidiaries' assets for taxes, other than for taxes which have accrued
but which are not yet due and payable. Neither the Company nor any
Subsidiary is liable for any taxes that are imposed on any other person or
corporation (other than for taxes imposed on the Company or the
Subsidiaries), except as set forth in Treasury Regulation 1.1502-6 with
respect to prior consolidated groups of which the Company or its
subsidiaries were members.
(xxiii) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) maintained or contributed to by the Company or
any Subsidiary, or with respect to which the Company or any Subsidiary
could incur any liability under ERISA (collectively, the "Benefit Plans"),
no event has occurred and, to the best knowledge of the Company, there
exists no condition or set of circumstances, in connection with which the
Company or any Subsidiary could be subject to any liability under the
terms of such Benefit Plans, applicable law (including, without
limitation, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code")) or any applicable agreement (including, without limitation, the
agreement dated as of January 14, 1993 (the "PBGC Agreement"), among the
Pension Benefit Guaranty Corporation (the "PBGC"), the Company and
Xxxx-Xxxxxx Security Corporation ("BWSC")), that could materially
adversely affect the condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise. The Company is in compliance
in all respects with its obligations under the PBGC Agreement.
(xxiv) The Company has obtained the written agreement, in the form
previously furnished to you, of (A) each holder of at least 1% of the
outstanding shares of Common Stock who is a party to the Registration
Rights Agreement dated as of January 27, 1993 among the Company and the
Stockholders who are parties thereto (the "Registration Rights Agreement")
that for a period beginning seven days
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before, and ending 180 days after, the effective date of the Registration
Statement, not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the 1933 Act, of Common Stock or any
securities convertible into or exchangeable for Common Stock, or any
rights or warrants to acquire Common Stock and (B) executive officers and
directors of the Company that for a period beginning seven days before,
and ending 180 days after, the effective date of the Registration
Statement, such holders will not, without your prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any Common Stock or securities convertible
into or exchangeable or exercisable for Common Stock.
(xxv) There are no persons, corporations, partnerships or other
entities with registration or other similar rights to have any securities
registered pursuant to the Registration Statement, except as such
registration or other similar rights have been disclosed in the
Prospectuses. All such registration or other similar rights have been
complied with or waived.
(xxvi) The Shares have been approved for listing on the New York
Stock Exchange, Inc.
(b) Each of the Selling Stockholders severally represents and
warrants to and agrees with each of the International Underwriters as follows:
(i) When the Registration Statement or any post-effective amendment
thereto shall become effective, and at all times subsequent thereto up to
the Closing Time (and, if any International Option Shares are purchased,
at the Date of Delivery), (A) neither the Registration Statement nor any
amendment or supplement thereto will 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, and
(B) neither of the Prospectuses nor any amendment or supplement thereto
will include an untrue statement of a material fact or 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;
provided, however, that, as to each Selling Stockholder, the
representations and warranties in this subsection (b)(i) apply only to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Selling Stockholder, in its capacity as such, expressly for use in the
Registration Statement or the Prospectuses.
(ii) No authorization, approval, consent or license of, or any
material filing with, any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations and the
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securities or Blue Sky laws of the various states, the securities laws of
Canada and its provinces and the securities laws of any jurisdiction
outside the United States in which the International Shares are offered
and sold by the International Underwriters pursuant to this Agreement), is
required for the consummation by such Selling Stockholder of the
transactions contemplated in this Agreement or the U.S. Purchase
Agreement, including, without limitation, the sale and delivery of the
Shares.
(iv) The execution and delivery of this Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated
in this Agreement and the U.S. Purchase Agreement will not result in (a) a
breach by such Selling Stockholder of, or constitute a default by such
Selling Stockholder under, any agreement or instrument or any decree,
judgment or order to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or the properties of such Selling
Stockholder are subject or (b) violate (1) any provision of the
certificate of incorporation, by-law, partnership agreement or comparable
governing documents of such Selling Stockholder or any law, rule or
regulation applicable to such Selling Stockholder or (2) to which its
properties are subject (other than for the securities or Blue Sky laws of
the various states, the securities laws of Canada and its provinces and
the securities laws of any jurisdiction outside the United States in which
the International Shares are offered or sold by the International
Underwriters pursuant to this Agreement).
(v) Such Selling Stockholder has good and marketable title to the
Shares to be sold by such Selling Stockholder pursuant to this Agreement
and the U.S. Purchase Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind, other
than pursuant to this Agreement, the U.S. Purchase Agreement, the
Registration Rights Agreement, and the Investors Stockholders Agreement
dated January 27, 1993; and such Selling Stockholder will at the Closing
Time and, if any Option Shares are to be purchased, on the Date of
Delivery have good and marketable title to the Shares to be sold by such
Selling Stockholder pursuant to this Agreement and the U.S. Purchase
Agreement, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind; such Selling Stockholder has
full right, power and authority to sell, transfer and deliver such Shares
pursuant to this Agreement or the U.S. Purchase Agreement; and, upon
delivery of such Shares and payment of the purchase price therefor as
contemplated in this Agreement and the U.S. Purchase Agreement, each of
the International Underwriters and the U.S. Underwriters, as the case may
be, will receive good and marketable title to the Shares purchased by it
from such Selling Stockholder, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
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(vi) Certificates for all of the shares of Common Stock, or with
respect to Selling Stockholders that own shares of the Company's
Non-Voting Common Stock, par value $.01 per share, (the "Non-Voting
Stock"), certificates for all of the Shares of Non-Voting Stock
(accompanied by a written notice requesting conversion of such shares,
which notice shall comply with Section 2(4)(iii) of the Company's Restated
Certificate of Incorporation), to be sold by such Selling Stockholder
pursuant to this Agreement and the U.S. Purchase Agreement, in suitable
form for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment executed in blank, are available for delivery
pursuant to this Agreement and the U.S.
Purchase Agreement.
(vii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation
of the price of the Common Stock; and such Selling Stockholder has not
distributed and will not distribute any prospectus or other offering
material in connection with the offering and sale of the Shares other than
any preliminary prospectus filed with the Commission or the Prospectuses
or other material permitted by the 1933 Act or the 1933 Act Regulations.
(viii) Such Selling Stockholder, if such Selling Stockholder is not
a natural person, is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, as
the case may be, with all necessary power and authority to enter into and
perform each of this Agreement and the U.S. Purchase Agreement and to sell
and deliver the Shares to the International Underwriters and the U.S.
Underwriters, as the case may be, in accordance with each of this
Agreement and the U.S. Purchase Agreement.
(c) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to you or to counsel for the International Underwriters
shall be deemed a representation and warranty by the Company to each
International Underwriter as to the matters covered thereby; and any certificate
signed by or on behalf of the Selling Stockholders as such and delivered to you
or to counsel for the International Underwriters shall be deemed a
representation and warranty by the Selling Stockholders to each International
Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the U.S. Underwriters; Closing. (a)
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each International Underwriter the number
of Initial International Shares set forth opposite the name of such Selling
Stockholder on Schedule A, and each International Underwriter agrees, severally
and not jointly, to purchase from each Selling Stockholder, at the purchase
price per share for the Initial International Shares to be agreed upon by the
U.S.
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Representatives and the Selling Stockholders, in accordance with Section 2(b) or
2(c) hereof, and set forth in the International Price Determination Agreement,
the number of Initial International Shares that bears the same relation to
[ ] as the number of Initial International Shares set forth opposite the
name of such International Underwriter in Schedule B bears to the total number
of Initial International Shares (such proportion is hereinafter referred to as
such International Underwriter's "underwriting obligation proportion"), subject
to such adjustments as you in your discretion, shall make to eliminate any sales
or purchases of fractional shares. If the Company elects to rely on Rule 430A,
Schedules A and B may be attached to the International Price Determination
Agreement.
(b) If the Company has elected not to rely upon Rule 430A, the price
to the public per share for the Initial International Shares and the purchase
price per share for the Initial International Shares to be paid by the several
International Underwriters shall be agreed upon and set forth in the
International Price Determination Agreement, dated the date hereof, and an
amendment to the Original Registration Statement containing such per share price
information will be filed before the Original Registration Statement becomes
effective.
(c) If the Company has elected to rely upon Rule 430A, the price to
the public per share for the Initial International Shares and the purchase price
per share for the Initial International Shares to be paid by the several
International Underwriters shall be agreed upon and set forth in the
International Price Determination Agreement. In the event that the International
Price Determination Agreement has not been executed by the close of business on
the fourteenth business day following the later of the date on which the
Original Registration Statement and any Rule 462(b) Registration Statement
becomes effective, this Agreement shall terminate forthwith, without liability
of any party to any other party except that Sections 7, 8 and 9 shall remain in
effect.
(d) In addition, on the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, the
Selling Stockholders hereby grant an option to the International Underwriters,
severally and not jointly, to purchase up to an aggregate of [ ] additional
International Option Shares, as set forth opposite such Selling Stockholder's
name on Schedule A, at the same purchase price per share as shall be applicable
to the Initial International Shares. The option hereby granted will expire 30
days after the later of the date upon which the Original Registration Statement
and any Rule 462(b) Registration Statement becomes effective or, if the Company
has elected to rely upon Rule 430A, the date of the International Price
Determination Agreement, and may be exercised, in whole or in part (but not more
than once), only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Initial International
Shares upon notice by the International Representatives to the Selling
Stockholders setting forth the aggregate number of International Option Shares
as to which the several International Underwriters are exercising the option,
and the time and date of payment and delivery thereof. Such time and date of
delivery (the "Date of Delivery") shall
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be determined by the International Representatives but shall not be later than
seven full business days after the exercise of such option, nor in any event
prior to the Closing Time. If the option is exercised as to only a portion of
the International Option Shares, the Selling Stockholders will sell their pro
rata portion of the International Option Shares to be purchased by the
International Underwriters. If the option is exercised as to all or any portion
of the International Option Shares, the International Option Shares as to which
the option is exercised shall be purchased by the International Underwriters,
severally and not jointly, in their respective underwriting obligation
proportions except as otherwise provided in the International Price
Determination Agreement, subject to such adjustments as the International
Underwriters, in their discretion, shall make to eliminate any sales or
purchases of fractional shares.
(e) Payment of the purchase price for, and delivery of certificates
for, the Initial International Shares shall be made at the offices of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx or 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Company, the
Selling Stockholders and you, at 10:00 A.M. either (i) on the third full
business day after the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement (or, if pricing of the
Shares occurs after 4:30 P.M. Eastern time, on the fourth full business day
thereafter), or (ii) if the Company has elected to rely upon Rule 430A, on the
third full business day after execution of the International Price Determination
Agreement (or, if pricing of the Shares occurs after 4:30 P.M. Eastern time, on
the fourth full business day thereafter) (unless, in either case, postponed
pursuant to Section 11 or 12), or at such other time not more than ten full
business days thereafter as you, the Selling Stockholders and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the International
Option Shares are purchased by the International Underwriters, payment of the
purchase price for, and delivery of certificates for, such International Option
Shares shall be made at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx
or 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
Company, the Selling Stockholders and you shall determine, on the Date of
Delivery as specified in the notice from you to the Company. Payment shall be
made to the Selling Stockholders by wire transfer in immediately available funds
against delivery to you for the respective accounts of the several International
Underwriters of certificates for the International Shares to be purchased by
them.
(f) Certificates for the Initial International Shares and
International Option Shares to be purchased by the International Underwriters
shall be in such denominations and registered in such names as you may request
in writing at least two full business days before the Closing Time or the Date
of Delivery, as the case may be. The certificates for the Initial International
Shares and International Option Shares will be made available in New York City
for examination and packaging by you not later than 10:00 A.M. on the business
day prior to the Closing Time or the Date of Delivery, as the case may be.
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(g) It is understood that each International Underwriter has
authorized you, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the International Shares that it has agreed
to purchase. You, individually and not as International Representatives, may
(but shall not be obligated to) make payment of the purchase price for the
Initial International Shares, or International Option Shares, to be purchased by
any International Underwriter whose check or checks shall not have been received
by the Closing Time or the Date of Delivery, as the case may be.
Section 3. Certain Covenants of the Company. The Company covenants
with each International Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule
430A and subject to Section 3(b) hereof, will comply with the requirements
of Rule 430A and will notify the International Representatives immediately
(i) when the Registration Statement, or any post-effective amendment to
the Registration Statement, shall have become effective, or any supplement
to the Prospectuses or any amended Prospectuses shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission to amend the Registration Statement or amend or
supplement any 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 Shares for offering or sale in any jurisdiction, or
of the institution or threatening of any proceedings for any of such
purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to
the Registration Statement, (including any filing under Rule 462(b)), file
a Term Sheet or file or make any amendment or supplement (i) if the
Company has not elected to rely upon Rule 430(A), to the Prospectuses
(including amendments of the documents incorporated by reference into the
Prospectuses) or (ii) if the Company has elected to rely upon Rule 430A,
to either the prospectuses included in the Original Registration Statement
at the time it becomes effective or to the Prospectuses (including
amendments of the documents incorporated by reference into the
Prospectuses or to the Prospectuses pursuant to Item 12 and Rule 412), of
which you shall not have previously been advised and furnished a copy, or
to which you or counsel for the International Underwriters shall
reasonably object in writing.
(c) The Company has furnished or will furnish to you and counsel for
the International Underwriters, without charge, as many copies (including
at least 1
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signed copy) of the Registration Statement as originally filed and of all
amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the
Prospectuses pursuant to Item 12 and Rule 412) and signed copies of all
consents and certificates of experts, as you may reasonably request and
has furnished or will furnish to you, for each other International
Underwriter, one conformed copy of the Registration Statement as
originally filed and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits).
(d) The Company will deliver to each International Underwriter,
without charge, from time to time until the later of the effective date of
the Original Registration Statement and any Rule 462(b) Registration
Statement (or, if the Company has elected to rely upon Rule 430A, until
the time the International Price Determination Agreement is executed and
delivered), as many copies of each preliminary prospectus as such
International Underwriter may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will deliver to each International Underwriter, without
charge, as soon as the Registration Statement shall have become effective
(or, if the Company has elected to rely upon Rule 430A, as soon as
practicable after the International Price Determination Agreement has been
executed and delivered) and thereafter from time to time as requested
during the period when the Prospectus is required to be delivered under
the 1933 Act, such number of copies of the Prospectuses (as supplemented
or amended) as such International Underwriter may reasonably request.
(e) The Company will comply in all material respects with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and in the Prospectuses. If at
any time when a prospectus is required by the 1933 Act or the 1933 Act
Regulations to be delivered in connection with sales of the Shares any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the International Underwriters or counsel
for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include
an untrue statement 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 either such
counsel, at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly upon
becoming aware of such event or condition prepare and file with the
Commission, subject to Section 3(b)
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hereof, such amendment or supplement as may be necessary to correct such
untrue statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
International Underwriters, to qualify the Shares for offering and sale
under the applicable securities laws of such states and other
jurisdictions as you may 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 Original Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not 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. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above provided. The company will also supply you with such
information as is necessary for the determination of the legality of the
Shares for investment under the laws of such jurisdictions as you may
request.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations), covering a period of 12 months beginning after the later of
the effective date of the Original Registration Statement and any Rule
462(b) Registration Statement and covering a period of 12 months beginning
after the effective date of any post-effective amendment to the
Registration Statement but not later than the first day of the Company's
fiscal quarter next following such respective effective dates.
(h) The Company, during the period when the Prospectuses are
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13
or 14 of the 1934 Act subsequent to the time the Registration Statement
becomes effective.
(i) For a period of two years after the Closing Time, the Company
will furnish to you and, upon request, to each International Underwriter,
copies of all annual reports, quarterly reports and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar
forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its
stockholders generally.
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(j) For a period of 180 days from the date hereof, the Company will
not, without your prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
any Common Stock or securities convertible into Common Stock, other than
to the International Underwriters pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement (except for options
to purchase shares of Common Stock granted to the Company's officers,
directors or employees in the ordinary course of business, consistent with
past practice, or the exercise of such options and similar options
currently outstanding).
(k) If the Company has elected to rely upon Rule 430A, it 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.
(l) If the Company has elected to rely on Rule 434, it will comply
with the requirements of Rule 434, and the Prospectuses will not be
"materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it becomes
effective.
(m) If the Company elects to rely upon Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) and pay the applicable fees in accordance
with Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00 P.M.
Eastern time on the date of the International Price Determination
Agreement and (ii) the time confirmations are sent or given, as specified
by Rule 462(b).
(n) If applicable, the Company will comply with all the provisions
of Florida H.B. 1771, codified as Section 517.075 of the Florida statutes,
and all regulations promulgated thereunder relating to issuers doing
business in Cuba.
(o) The Company will use its best efforts to effect the listing of
the Shares on the New York Stock Exchange on or prior to the date of the
International Price Determination Agreement.
Section 4. Payment of Expenses. The Company will pay and bear all
costs and expenses incident to the performance of the obligations of the Company
and of the Selling Stockholders under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectuses and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the International
Underwriters, (b) the preparation, printing and distribution of this Agreement
(except for the
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International Price Determination Agreement), the Intersyndicate Agreement among
the International Underwriters and U.S. Underwriters, the Agreement Among
International Underwriters and the Blue Sky Survey (which shall not be typeset),
(c) the delivery of the certificates for the International Shares to the
International Underwriters (except for any stock transfer taxes payable upon the
sale of the International Shares to the International Underwriters, which shall
be paid by the Selling Stockholders), (d) the fees and disbursements of the
Company's counsel and accountants and the Selling Stockholders' counsel, (e) the
qualification of the International Shares under the applicable securities laws
in accordance with Section 3(f) and any filing for review of the offering with
the National Association of Securities Dealers, Inc. (the "NASD"), including
filing fees and reasonable fees and disbursements of Shearman & Sterling as
counsel for the International Underwriters solely in connection therewith, and
in connection with the Blue Sky Survey and (f) the listing fees and expenses
incurred in connection with listing the Shares on the New York Stock Exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 5, 10(a)(i) or 12, the Company shall reimburse the
International Underwriters for all their out-of-pocket expenses, including the
reasonable fees and disbursements of Shearman & Sterling as counsel for the
International Underwriters.
Section 5. Conditions of International Underwriters' Obligations. In
addition to the execution and delivery of the International Price Determination
Agreement, the obligations of the several International Underwriters to purchase
and pay for the International Shares that they have respectively agreed to
purchase pursuant to this Agreement (including any International Option Shares
as to which the option granted in Section 2 has been exercised and the Date of
Delivery determined by you is the same as the Closing Time) are subject to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained herein (including those contained in the International
Price Determination Agreement) or in certificates of any officer of the Company
or any Subsidiary or certificates by or on behalf of the Selling Stockholders
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Stockholders of their obligations hereunder, and to the
following further conditions:
(a) The Original Registration Statement shall have become effective
not later than 5:30 P.M. on the date of this Agreement or, with your
consent, at a later time and date not later, however, than 5:30 P.M. on
the first business day following the date hereof and if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective not later than the earlier of (i) 9:00 A.M.
Eastern time on the day following the date of the International Price
Determination Agreement, and (ii) the time confirmations are sent or
given, as specified by Rule 462(b), or, with respect to the Original
Registration Statement, at such later time or on such later date as you
may agree to in writing with the approval
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of a majority in interest of the several International Underwriters; and
at the Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be
pending or, to your knowledge or the knowledge of the Company, shall be
contemplated by the Commission, and any request made to the Company on the
part of the Commission for additional information with respect to the
Registration Statement shall have been complied with to the satisfaction
of Shearman & Sterling as counsel for the International Underwriters. If
the Company has elected to rely upon Rule 430A, prospectuses 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). If the Company has elected to rely
upon Rule 434, a Term Sheet, which together with the preliminary
prospectus last furnished to the International Underwriters in connection
with the offering of the Shares shall not be "materially different," as
such term is used in Rule 434, from the prospectus included in the
Original Registration Statement at the time it becomes effective, shall
have been filed with the Commission in accordance with Rule 424(b).
(b) At the Closing Time, you shall have received a signed opinion of
Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Company, dated as
of the Closing Time, together with signed or reproduced copies of such
opinion for each of the other International Underwriters, in form and
substance reasonably satisfactory to counsel for the International
Underwriters, in the form set forth in Exhibit C hereto.
(c) At the Closing Time, you shall have received a signed opinion of
Xxxxxxx X. Xxxxxxxx, Esq., Vice President, Secretary and General Counsel
for the Company, dated as of the Closing Time, together with signed or
reproduced copies of such opinion for each of the other International
Underwriters, in form and substance reasonably satisfactory to counsel for
the International Underwriters, in the form set forth in Exhibit D hereto.
(d) At the Closing Time, you shall have received a signed opinion of
NSK-Warner's Japanese counsel, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other
International Underwriters, in form and substance reasonably satisfactory
to counsel for the International Underwriters, in the form set forth in
Exhibit E hereto.
(e) At the Closing Time you shall have received a signed opinion of
the attorneys listed on Schedule C attached hereto for the Selling
Stockholders specified opposite such attorney's name, each dated as of the
Closing Time, together with signed or reproduced copies of such opinion
for each of the other International
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Underwriters, in form and substance reasonably satisfactory to counsel for
the International Underwriters, each, with respect to the Selling
Stockholders that such counsel represents, in the form set forth in
Exhibit F hereto.
(f) At the Closing Time, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the International
Underwriters, dated as of the Closing Time, together with signed or
reproduced copies of such opinion for each of the other International
Underwriters, to the effect that the opinions delivered pursuant to
Sections 5(b), 5(c), 5(d) and 5(e) hereof appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, this Agreement, the
Registration Statement, the Prospectuses and such other related matters as
you may require. 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 you. 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 and the
Subsidiaries and the Selling Stockholders and certificates of public
officials.
(g) At the Closing Time, (i) the Registration Statement and the
Prospectuses, as they may then be amended or supplemented, shall comply in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations, the Company shall have complied in all material respects
with Rule 430A (if it shall have elected to rely thereon) and Rule 434 (if
it shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectuses, as they may then be amended or
supplemented, shall 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, (ii) there shall not have
been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition
(financial or otherwise), results of operations, business affairs or
business prospects of the Company and the Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
(iii) no action, suit or proceeding at law or in equity shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary that would be required to be set forth in the Prospectuses
other than as set forth therein and no proceedings shall be pending or, to
the knowledge of the Company, threatened against the Company or any
Subsidiary before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
could materially adversely affect the condition (financial or otherwise),
results of operations, business affairs or business prospects of the
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Company and the Subsidiaries, considered as one enterprise, other than as
set forth in the Prospectuses, (iv) the Company shall have complied with
all agreements and satisfied all conditions set forth in this Agreement on
its part to be performed or satisfied at or prior to the Closing Time and
(v) the other representations and warranties of the Company set forth in
Section 1(a) shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate
of the President or a Vice President, and the Treasurer or an Assistant
Treasurer, of the Company, dated as of the Closing Time, to such effect.
(h) At the Closing Time, the representations and warranties of each
Selling Stockholder set forth in Section 1(b) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you
shall have received a certificate of or on behalf of each Selling
Stockholder, dated as of the Closing Time, to such effect with respect to
such Selling Stockholder.
(i) At the time that this Agreement is executed by the Company, you
shall have received from Deloitte & Touche LLP a letter, dated such date,
in form and substance satisfactory to you, together with signed or
reproduced copies of such letter for each of the other International
Underwriters, confirming that they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the
applicable published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial statements and
the related financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectuses
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of
a reading of the unaudited interim consolidated financial statements
of the Company included or incorporated by reference in the
Registration Statement and the Prospectuses (collectively, the "10-Q
Financials"), a reading of the latest available unaudited interim
consolidated financial statements of the Company, a reading of the
minutes of all meetings of the stockholders and directors of the
Company and the Subsidiaries and each Committee of the Company's
Board of Directors and of each Committee of the Board of Directors
of any Subsidiary since [January 1], 1996, inquiries of certain
officials of the Company and the Subsidiaries responsible for
financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
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(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectuses do not comply as
to form in all material respects with the accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form
10-Q or any material modifications should be made to the 10-Q
Financials included or incorporated by reference in the
Registration Statement and the Prospectuses for them to be in
conformity with generally accepted accounting principles;
(B) at [December 31], 1996 and at a specified date not
more than five days prior to the date of this Agreement,
there was any change in the capital stock of the Company and
the Subsidiaries or any decrease in the consolidated net
current assets or stockholders' equity of the Company and the
Subsidiaries or any increase in long-term debt of the Company
and the Subsidiaries, in each case as compared with amounts
shown in the latest consolidated balance sheet included or
incorporated by reference in the Registration Statement,
except in each case for changes, decreases or increases that
the Registration Statement discloses have occurred or may
occur; or
(C) for the period from [January 1], 1997 to a specified
date not more than five days prior to the date of this
Agreement, there was any decrease in net sales, equity in
affiliate earnings and other income, earnings before interest
and finance charges and income taxes or net earnings, in each
case as compared with the comparable period in the preceding
year;
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the Selected Historical Financial Data
included in the Registration Statement and a reading of the
financial statements from which certain of such data were derived,
nothing has come to their attention that gives them reason to
believe that the Selected Historical Financial Data included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations, that the information set forth therein
is not fairly stated in relation to the financial statements from
which it was derived or that the financial statements not included
in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration
Statement; and
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(iv) they are unable to and do not express any opinion on the
Pro Forma Financial Data (the "Pro Forma Statement") included or
incorporated by reference in the Registration Statement or on the
pro forma adjustments applied to the historical amounts included in
the Pro Forma Statement; however, for purposes of such letter they
have:
(A) read the Pro Forma Statement;
(B) made inquiries of certain officials of the Company
and of the Coltec Subsidiaries who have responsibility for
financial and accounting matters about the basis for their
determination of the pro forma adjustments and whether the
Pro Forma Statement complies as to form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X; and
(C) proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the
Pro Forma Statement; and
on the basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that the Pro Forma Statement
included or incorporated by reference in the Registration Statement
does not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(v) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages, numerical data and financial information
appearing in the Registration Statement, which have
previously been specified by you and which shall be specified
in such letter, and have compared certain of such items with,
and have found such items to be in agreement with, the
accounting and financial records of the Company.
(j) At the time that this Agreement is executed by the Company, you
shall have received from KPMG Peat Marwick a letter, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such letter for each of the other International Underwriters,
confirming that they are independent public accountants with respect to
the NSK-Warner within the meaning of the 1933 Act and applicable published
1933 Act Regulations, and stating in effect that:
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(i) in their opinion, the audited financial statements and
the related financial statement schedules for NSK-Warner included or
incorporated by reference in the Registration Statement and the
Prospectuses comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations;
(ii) they have read the latest available unaudited interim
consolidated financial statements of NSK-Warner, the minutes of all
meetings of the stockholders and directors of NSK-Warner and each
Committee of the Board of Directors since [October 1], 1996,
inquired of certain officials of NSK-Warner responsible for
financial and accounting matters, and made such other inquiries and
performed such other procedures as may be specified in such letter,
and officials of NSK-Warner stated that:
(A) at [December 31], 1996 and at a specified date not
more than five days prior to the date of this Agreement,
there was no change in the common stock of NSK-Warner or
decrease in the net current assets or stockholders' equity of
NSK-Warner or increase in the notes payable or long-term debt
of NSK-Warner, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by
reference in the Registration Statement; or
(B) for the period from [October 1], 1996 to [December
31], 1996 and for the period from [December 31], 1996 to a
specified date not more than five days prior to the date of
this Agreement, there was no decrease in sales, earnings
before income taxes or net earnings, in each case as compared
with the corresponding period in the preceding year.
(k) At the time that this Agreement is executed, you shall have
received from Xxxxxx Xxxxxxxx LLP a letter, dated such date, in form and
substance satisfactory to you, together with signed or reproduced copies
of such letter for each of the other U.S. Underwriters, confirming that
they are independent public accountants with respect to the Coltec
Subsidiaries and the Company within the meaning of the 1933 Act and
applicable published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial statements and
the related financial statement schedules for the Coltec
Subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectuses comply as to form in all
material respects with the applicable accounting
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28
requirements of the 1933 Act, the 1934 Act, the 1933 Act Regulations
and the 1934 Act Regulations;
(ii) they have read the latest available unaudited interim
consolidated financial statements of the Coltec Subsidiaries, the
minutes of all meetings of the stockholders and directors of the
Coltec Subsidiaries and each Committee of the Boards of Directors
since [January 1], 1996, inquired of certain officials of the Coltec
Subsidiaries responsible for financial and accounting matters, and
made such other inquiries and performed such other procedures as may
be specified in such letter, and officials of the Coltec
Subsidiaries stated that:
(A) at June 17, 1996, there was no change in the capital
stock of the Coltec Subsidiaries or any decrease in the
consolidated net current assets or stockholders' equity of
the Coltec Subsidiaries or any increase in long-term debt of
the Coltec Subsidiaries, in each case as compared with
amounts shown in the latest consolidated balance sheet
included or incorporated by reference in the Registration
Statement, except in each case for changes, decreases or
increases that the Registration Statement discloses have
occurred or may occur; or
(B) for the period from April 1, 1996 to May 31, 1996,
there was no decrease in net sales, earnings before income
taxes or net earnings, in each case as compared with the
comparable period in the preceding year, except in each case
for any decreases that the Registration Statement discloses
have occurred or may occur; and
(iii) based upon the procedures set forth in clause (ii)
above, nothing has come to their attention that gives them reason to
believe that the information set forth in the latest available
unaudited interim consolidated financial statements of the Coltec
Subsidiaries is not fairly stated in relation to the financial
statements from which it was derived or that the financial
statements not included in the Registration Statement from which
certain of such data were derived are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement.
(l) At the Closing Time, you shall have received from each of
Deloitte & Touche LLP, KPMG Peat Marwick and Xxxxxx Xxxxxxxx LLP a letter,
in form and substance satisfactory to you and dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letters
furnished pursuant to Sections 5(i), 5(j) and 5(k), respectively, except
that the specified date referred to shall be a date not more than five
days prior to the Closing Time.
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29
(m) At the Closing Time, counsel for the International Underwriters
shall have been furnished with all such documents, certificates and
opinions as they may reasonably request for the purpose of enabling them
to pass upon the sale of the Shares as contemplated in this Agreement and
the matters referred to in Section 5(f) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company and the Selling Stockholders, the performance of
any of the covenants of the Company, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company and
the Selling Stockholders at or prior to the Closing Time in connection
with the sale of the Shares as contemplated in this Agreement shall be
reasonably satisfactory in form and substance to you and to counsel for
the International Underwriters.
(n) The "lock-up" letters which are substantially in the form of
Exhibit G attached hereto from (a) each executive officer or director of
the Company and (b) each stockholder of the Company who (i) owns at least
1% of the outstanding shares of Common Stock and (ii) who is a party to
the Registration Rights Agreement have been delivered to you on or before
the date hereof.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company and the Selling Stockholders at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 7, 8
and 9 herein shall remain in effect.
Section 6. Conditions to Purchase of International Option Shares. In
the event that the International Underwriters exercise their option granted in
Section 2 hereof to purchase all or any of the International Option Shares and
the Date of Delivery determined by you pursuant to Section 2 hereof is later
than the Closing Time, the obligations of the several International Underwriters
to purchase and pay for the U.S. Option Shares that they shall have respectively
agreed to purchase pursuant to this Agreement are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein contained, to the performance by the Company and the Selling Stockholders
of their obligations hereunder and to the following further conditions:
(a) The Registration Statement shall remain effective at the Date of
Delivery, and, at the Date of Delivery, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of
the Company, shall have been threatened by the Commission, and any request
on the part of the Commission for additional
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30
information shall have been complied with to the reasonable satisfaction
of counsel for the International Underwriters.
(b) At the Date of Delivery, the provisions of Sections 5(g)(i)
through 5(g)(v) shall have been complied with at and as of the Date of
Delivery and, at the Date of Delivery, you shall have received a
certificate of the President or a Vice President, and the Treasurer or an
Assistant Treasurer, of the Company, dated as of the Date of Delivery, to
such effect.
(c) At the Date of Delivery, you shall have received the favorable
opinions of Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the
Company, Xxxxxxx X. Xxxxxxxx, General Counsel of the Company, NSK-Warner's
Japanese counsel and counsel for the Selling Stockholders, together with
signed or reproduced copies of such opinions for each of the other
International Underwriters, in each case in form and substance reasonably
satisfactory to counsel for the International Underwriters, dated as of
the Date of Delivery, relating to the International Option Shares and
otherwise to the same effect as the opinions required by Section 5(b),
5(c), 5(d) and 5(e), respectively.
(d) At the Date of Delivery, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the International
Underwriters, dated as of the Date of Delivery, relating to the
International Option Shares and otherwise to the same effect as the
opinion required by Section 5(f).
(e) At the Date of Delivery, you shall have received a letter from
each of Deloitte & Touche LLP, KPMG Peat Marwick and Xxxxxx Xxxxxxxx LLP,
in form and substance satisfactory to you and dated as of the Date of
Delivery, to the effect that they reaffirm the statements made in the
letters furnished pursuant to Section 5(i), 5(j) and 5(k), respectively,
except that the specified date referred to shall be a date not more than
five days prior to the Date of Delivery.
(f) At the Date of Delivery, you shall have received from each of
the Selling Stockholders (or on their behalf) certificates substantially
in the form of the certificates furnished to you pursuant to Section 5(h),
except that such certificates shall be as of the Date of Delivery.
(g) At the Date of Delivery, the representations and warranties of
each Selling Stockholder set forth in Section 1(b) hereof shall be
accurate as though expressly made at and as of the Date of Delivery.
(h) At the Date of Delivery, counsel for the International
Underwriters shall have been furnished with all such documents,
certificates and opinions as they
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may reasonably request for the purpose of enabling them to pass upon the
sale of the International Option Shares as contemplated in this Agreement
and the matters referred to in Section 6(d) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company or the Selling Stockholders, the performance of
any of the covenants of the Company, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company and
the Selling Stockholders at or prior to the Date of Delivery in connection
with the sale of the International Option Shares as contemplated in this
Agreement shall be reasonably satisfactory in form and substance to you
and to counsel for the International Underwriters.
Section 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each International Underwriter and each person, if any, who
controls any International Underwriter within the meaning of Section 15 of the
1933 Act or Section of the 1934 Act to the extent and in the manner set forth in
clauses (i), (ii) and (iii) below. In addition, each Selling Stockholder,
severally and not jointly (but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) in reliance upon and in conformity with
written information furnished by such Selling Stockholder, expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto), a copy
of which written information shall have been previously delivered to you),
agrees to indemnify and hold harmless each International Underwriter and each
person, if any, who controls any International Underwriter within the meaning of
Section 15 of the 1933 Act or Section of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an 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, and all documents
incorporated therein by reference, 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 an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectuses (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, or if Rule 434
is used, if the Prospectus is "materially different", as such term is used
in Rule 434, from the prospectus included in the Original Registration
Statement at the time it becomes effective;
(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
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any litigation, or 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, if such settlement is effected with the written
consent of the Company and the Selling Stockholders; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, fees and disbursements of
counsel chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or 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 subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an 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
International Underwriter through you 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
Prospectuses (or any amendment or supplement thereto); provided further that the
liability of a Selling Stockholder pursuant to this Section 7 is limited to the
amount of the net proceeds of the offering of the International Shares (after
deducting the underwriting discount, but before deducting expenses) received by
such Selling Stockholder.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of a International
Underwriter or who controls a International Underwriter within the meaning of
Section 15 of the 1933 Act or Section of the 1934 Act and who, at the date of
this Agreement, is a director, officer or controlling person of the Company,
such indemnity agreement is subject to the undertaking of the Company in the
Registration Statement under Item 17 thereof.
(b) Each International 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 of the 1934 Act and each
Selling Stockholder and each person, if any, who controls any Selling
Stockholder within the meaning of Section 15 of the 1933 Act or Section of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), 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 Prospectuses
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33
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by Xxxxxxx Xxxxx International
("MLI") through you expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or such preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each Selling Stockholder, its directors and officers or
general and limited partners (and the directors and officers thereof), and each
other person, if any, who controls such Selling Stockholder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with the Company's
consent) to which such Selling Stockholder, any such director or officer or
general or limited partner or controlling person may become subject under the
1933 Act, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) 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,
and all documents incorporated therein by reference, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, together with the documents incorporated by reference
therein (as amended or supplemented if the Company shall have filed with
Commission any amendment thereof or supplemented thereto), if used prior to the
effective date of the Registration Statement, or contained in the Prospectus (as
amended or supplemented if the Company shall have filed with the Commission any
amendment thereof or supplemented if the Company shall have filed with the
Commission any amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii) any violation
by the Company of any federal, state or common law rule or regulation applicable
to the Company and relating to action required of or inaction by the Company in
connection with the offering, and the Company will reimburse each such Selling
Stockholder and each such director, officer, general or limited partner, and
controlling person for any legal or any other expenses reasonably incurred by
any of them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, that the Company shall not be liable
to such Selling Stockholder or any such director, officer, general or limited
partner or controlling person in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement (or any
amendment or supplement thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or in any such preliminary
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prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder or any such director,
officer, general or limited partner or controlling person, specifically stating
that it is for use in the preparation thereof.
(d) Each Selling Stockholder agrees to indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 7(c)) the
Company and its directors and officers and each person controlling the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and all other Selling Stockholders and their directors, officers, general and
limited partners and respective controlling persons with respect to any
statement or alleged statement in or omission or alleged omission from the
Registration Statement (or any amendment or supplement thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or its representatives by or on behalf of the undersigned
specifically stating that it is for use in the preparation of the Registration
Statement (or any amendment or supplement thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, preliminary prospectus
or the Prospectuses (or any amendment or supplement thereto), or a document
incorporated by reference into any of the foregoing; provided, however, that the
liability of each Selling Stockholder pursuant to this Section 7(d) is limited
to the proceeds received by such Selling Stockholder from the sale of the Shares
pursuant to this Agreement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the other Selling Stockholders or any of its respective directors, officers,
general or limited partners or controlling persons and shall survive the
transfer of the Shares by each Selling Stockholder.
(e) 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 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 7(a) above, counsel to the indemnified
parties shall be selected by MLI, in the case of parties indemnified pursuant to
Sections 7(b) and (d) above, counsel to the indemnified parties shall be
selected by the Company, and, in the case of parties indemnified pursuant to
Section 7(c) above, counsel to the indemnified parties shall be selected by the
respective Selling Stockholder. 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 party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all
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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.
(f) No indemnifying party shall, without the prior written consent
of the indemnified parties, which consent shall not be unreasonably withheld,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 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.
(g) 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 7(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 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 45 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 for fees and expenses of counsel prior to the date
of such settlement.
Section 8. Contribution. If the indemnification provided for in
Section 7 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 or the Selling Stockholders] on the one hand and the International
Underwriters on the other hand from the offering of the Shares 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 or the Selling Stockholders] on the one hand and of the
International 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 the [Company or the Selling
Stockholders] on the one hand and the International Underwriters on the other
hand in connection with the offering of the Shares pursuant to this Agreement
shall be deemed to be in the same
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respective proportions as the total net proceeds from the offering of the Shares
pursuant to this Agreement (before deducting expenses) received by the Selling
Stockholders and the total underwriting discount received by the International
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 Shares as set forth on such
cover.
The relative fault of the [Company or the Selling Stockholders] on
the one hand and the International 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 related to information supplied by the Company or the
Selling Stockholders or by the International Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Stockholders and the International
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
International 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 8. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 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 8, no International
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such International 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
International 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
International Underwriter, and each director of the Company, each officer of the
Company who signed the Registration
38
37
Statement, and each person, if any, who controls the Company or a Selling
Stockholder 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 or a
Selling Stockholder, as the case may be. The International Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Shares set forth opposite their respective
names in Schedule A hereto and not joint.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers or the Selling Stockholders set forth
in or made pursuant to this Agreement will remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Selling
Stockholders, the Company, any International Underwriter or any person who
controls a Selling Stockholder or any International Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and will
survive delivery of and payment for the International Shares.
Section 10. Termination of Agreement. (a) You may terminate this
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to the Closing Time (i) if there has been, since the time of the
execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and the Subsidiaries, 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 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 on the financial markets of the United States is
such as to make it, in your judgment, impracticable to market the Shares or
enforce contracts for the sale of the Shares or (iii) if trading in any
securities of the Company has been suspended by the Commission or the New York
Stock Exchange, 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
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by such system or by order of the Commission, the New York Stock Exchange, the
NASD or any other governmental authority or (iv) if a banking moratorium has
been declared by either federal, New York or Illinois authorities. For purposes
of this Section 10(a), the deployment of circuit breakers by the American Stock
Exchange, the New York Stock Exchange or the Nasdaq National Market shall not
constitute a material limitation on trading on such exchanges or by such system.
(b) If this Agreement is terminated pursuant to this Section , such
termination shall be without liability of any party to any other party, except
to the extent
39
38
provided in Section 4. Notwithstanding any such termination, the provisions of
Sections 1, 7, 8 and 9 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 2(c), with the effect stated in such Section .
Section 11. Default by One or More of the International
Underwriters. If one or more of the International Underwriters shall fail at the
Closing Time to purchase the Initial International Shares that it or they are
obligated to purchase pursuant to this Agreement (the "Defaulted International
Shares"), you shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting International Underwriters,
or any other International Underwriters, to purchase all, but not less than all,
of the Defaulted International Shares in such amounts as may be agreed upon and
upon the terms set forth in this Agreement; if, however, you have not completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted International Shares does not exceed
10% of the total number of Initial International Shares, the
non-defaulting International Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective Initial
International Share underwriting obligation proportions bear to the
underwriting obligations of all non-defaulting International Underwriters;
or
(b) if the number of Defaulted International Shares exceeds 10% of
the total number of Initial International Shares, this Agreement shall
terminate without liability on the part of any non-defaulting
International Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting International Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectuses or in
any other documents or arrangements. As used herein, the term "International
Underwriter" includes any person substituted for a International Underwriter
under this Section 11.
Section 12. Default by a Selling Stockholder. If any Selling
Stockholder shall fail at the Closing Time to sell and deliver the number of
Initial International Shares that such Selling Stockholder is obligated to sell,
then the International Underwriters may, at your option, by notice from you to
the Company and the Selling Stockholders, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party, except to the
40
39
extent provided in Section 4 and except that the provisions of Sections 7 and 8
shall remain in effect or (b) elect to purchase the Initial International Shares
that the remaining Selling Stockholders have agreed to sell pursuant to this
Agreement.
In the event of any such default under this Section that does not
result in a termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements.
No action taken pursuant to this Section 12 shall relieve any
Selling Stockholder so defaulting from liability, if any, in respect of such
default.
Section 13. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to you or the International Underwriters shall be directed to you, c/o
Merrill Xxxxx International, Ropemaker Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0
X0XX, Attention: Equity Capital Markets; notices to the Company shall be
directed to it at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
General Counsel and notices to the Selling Stockholders shall be directed to
Xxxxxxx Xxxxx & Co., Inc., South Tower, World Financial Center, New York, New
York 10080-6123, Attention: Xxxxx X. Xxxxxx.
Section 14. Parties. This Agreement is made solely for the benefit
of the several International Underwriters, the Company and the Selling
Stockholders and, to the extent expressed, any person controlling the Company,
any Selling Stockholder or any of the International Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any of the several International Underwriters of the International Shares.
All of the obligations of the International Underwriters hereunder are several
and not joint.
Section 15. Representation of International Underwriters. You will
act for the several International Underwriters in connection with this
financing, and any action under or in respect of this Agreement taken by you as
International Representatives will be binding upon all International
Underwriters.
Section 16. Governing Law and Time. This Agreement shall be governed
by the laws of the State of New York. Specified times of the day refer to New
York City time.
Section 17. Counterparts. This Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
41
40
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, the Selling
Stockholders and the several International Underwriters in accordance with its
terms.
Very truly yours,
XXXX-XXXXXX AUTOMOTIVE, INC.
By:_______________________________
Name:
Title:
ML EMPLOYEES LBO PARTNERSHIP XXXXXXX XXXXX CAPITAL
NO. I, L.P. APPRECIATION PARTNERSHIP
NO. VIII, L.P.
By: ML Employees LBO By: Xxxxxxx Xxxxx LBO
Managers, Inc., Partners No. II, L.P.,
as General Partner as General Partner
By:_______________________________ By:_______________________________
Name: Name:
Title: Title:
XXXXXXX XXXXX KECALP L.P. 1986 XXXXXXX XXXXX KECALP L.P. 1987
By: KECALP Inc., By: KECALP Inc.,
as General Partner as General Partner
By: _______________________________ By:_______________________________
Name: Name:
Title: Title:
42
41
ML OFFSHORE LBO PARTNERSHIP MERCHANT BANKING L.P. NO. 1
NO. VIII
By: Xxxxxxx Xxxxx MBP Inc.,
By: Xxxxxxx Xxxxx LBO as General Partner
Partners No. II, L.P.,
as Investment General Partner By:_______________________________
Name:
By: Xxxxxxx Xxxxx Capital Title:
Partners, Inc.,
as General Partner
ML VENTURE PARTNERS II, L.P.
By:_______________________________
Name: By: MLVP II CO., L.P.,
Title: as General Partner
By: Xxxxxxx Xxxxx Venture Capital
Inc., as General Partner
ML IBK POSITIONS, INC.
By:_______________________________
By:_______________________________ Name:
Name: Title:
Title:
43
42
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By: Xxxxxxx Xxxxx International
By:_______________________________
Name:
Title:
For themselves and as International Representatives of the other International
Underwriters named in Schedule B.
44
SCHEDULE A
NUMBER OF NUMBER OF
INITIAL INTERNATIONAL INTERNATIONAL OPTION
SELLING STOCKHOLDER SHARES TO BE SOLD SHARES TO BE SOLD
------------------- ----------------- -----------------
Xxxxxxx Xxxxx KECALP L.P. 1986
Xxxxxxx Xxxxx KECALP L.P. 1987
Merchant Banking L.P. No. I
ML Venture Partners II, X.X.
Xxxxxxx Xxxxx Capital Appreciation
Partnership No. VIII, L.P.
ML Offshore LBO Partnership No. VIII
ML Employees LBO Partnership No. I, L.P.
ML IBK Positions, Inc.
-------- -------
Total ======== =======
45
SCHEDULE B
NUMBER OF
INITIAL INTERNATIONAL SHARES
INTERNATIONAL UNDERWRITER TO BE PURCHASED
------------------------- ---------------
Xxxxxxx Xxxxx International.....................
Xxxxxx Brothers International (Europe)..........
Xxxxxx Xxxxxxx & Co. International Limited......
--------
Total ========
46
SCHEDULE C
ATTORNEY SELLING STOCKHOLDER
-------- -------------------
Xxxxxx X. Tu, Esq. - ML IBK Positions, Inc.
- Xxxxxxx Xxxxx Capital Appreciation Partnership
No. VIII, L.P.
- ML Employees LBO Partnership No. I, L.P.
- ML Venture Partners II, L.P.
Xxxxxxxx X. Xxxxxx, Esq. - Xxxxxxx Xxxxx KECALP L.P. 1986
- Xxxxxxx Xxxxx KECALP L.P. 1987
- Merchant Banking L.P. No. I
Xxxx Xxxxxxxx, Esq. - ML Offshore LBO Partnership No. VIII
47
Exhibit A
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
[893,000] Shares of Common Stock
INTERNATIONAL PRICE DETERMINATION AGREEMENT
February __, 1997
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
As Representatives of the several International Underwriters
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 X0XX
Ladies and Gentlemen:
Reference is made to the International Purchase Agreement dated
February __, 1997 (the "International Purchase Agreement") among Xxxx-Xxxxxx
Automotive, Inc. (the "Company"), the Selling Stockholders named in Schedule A
thereto (the "Selling Stockholders") and the several International Underwriters
named in Schedule B thereto or hereto (the "International Underwriters"), for
whom Xxxxxxx Xxxxx International Limited, Xxxxxx Brothers International (Europe)
and Xxxxxx Xxxxxxx & Co. International Limited are acting as representatives
(the "International Representatives"). The International Purchase Agreement
provides for the purchase by the International Underwriters from the Selling
Stockholders, subject to the terms and conditions set forth therein, of an
aggregate of 900,000 shares (the "Initial International Shares") of the
Company's common stock, par value $.01 per share. This Agreement is the
International Price Determination Agreement referred to in the International
Purchase Agreement. Terms not defined herein are used herein as defined in the
International Purchase Agreement.
48
A-2
Pursuant to Section 2 of the International Purchase Agreement, the
Company and the Selling Stockholders agree with the International
Representatives as follows:
1. The price to the public per share for the Initial International
Shares shall be $_____.
2. The purchase price per share for the Initial International Shares
to be paid by the several International Underwriters shall be $_____,
representing an amount equal to the public offering price set forth above,
less $____ per share.
The Company represents and warrants to each of the International
Underwriters that the representations and warranties of the Company set forth in
Section 1(a) of the International Purchase Agreement are accurate as though
expressly made at and as of the date hereof.
Additionally, if the Company elects to rely on Rule 462(b), the
Company convenants to each of the International Underwriters that:
(a) the Company will file a Rule 462(b) Registration Statement in
compliance with, and that is effective upon filing pursuant to, Rule
462(b) prior to the time confirmations are sent or given, as
specified in Rule 462(b) of the 1933 Act; and
(b) the Company will give irrevocable instructions for transmission of
the applicable filing fee in connection with the filing of the Rule
462(b) Registration Statement, in compliance with Rule 111 of the
1933 Act Regulations or the Commission will have received payment of
such filing fee upon filing of the Rule 462(b) Registration
Statement.
Each Selling Stockholder represents and warrants to each of the
International Underwriters that the representations and warranties of such
Selling Stockholder set forth in Section 1(b) of the International Purchase
Agreement are accurate as though expressly made at and as of the date hereof.
As contemplated by Section 2 of the International Purchase
Agreement, attached as Schedule A is a completed list of the Selling
Stockholders and attached as Schedule B is a complete list of the several
International Underwriters, which shall be a part of this Agreement and the
International Purchase Agreement.
This Agreement shall be governed by the laws of the State of New
York.
49
A-3
If the foregoing is in accordance with the understanding of the
International Representatives of the agreement between the International
Underwriters, the Company and the Selling Stockholders, please sign and return
to the Company a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the International Purchase Agreement, shall be a
binding agreement between the International Underwriters, the Company and the
Selling Stockholders in accordance with its terms and the terms of the
International Purchase Agreement.
Very truly yours,
XXXX-XXXXXX AUTOMOTIVE, INC.
By:______________________________
Name:
Title:
ML EMPLOYEES LBO PARTNERSHIP XXXXXXX XXXXX CAPITAL
NO. I, L.P. APPRECIATION PARTNERSHIP
NO. VIII, L.P.
By: ML Employees LBO By: Xxxxxxx Xxxxx LBO
Managers, Inc., Partners No. II, L.P.,
as General Partner as General Partner
By:______________________________ By:______________________________
Name: Name:
Title: Title:
XXXXXXX XXXXX KECALP L.P. 1986 XXXXXXX XXXXX KECALP L.P. 1987
By: KECALP Inc., By: KECALP Inc.,
as General Partner as General Partner
By:______________________________ By:______________________________
Name: Name:
Title: Title:
00
X-0
XX XXXXXXXX XXX PARTNERSHIP MERCHANT BANKING L.P. NO. 1
NO. VIII
By: Xxxxxxx Xxxxx MBP Inc.,
By: Xxxxxxx Xxxxx LBO as General Partner
Partners No. II, L.P.,
as Investment General Partner By:______________________________
Name:
By: Xxxxxxx Xxxxx Capital Title:
Partners, Inc.,
as General Partner
ML VENTURE PARTNERS II, L.P.
By:______________________________
Name: By: MLVP II CO., L.P.,
Title: as General Partner
By: Xxxxxxx Xxxxx Venture Capital
Inc., as General Partner
ML IBK POSITIONS, INC.
By:______________________________
By:______________________________ Name:
Name: Title:
Title:
51
A-5
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By: Xxxxxxx Xxxxx International
By:______________________________
Name:
Title:
For themselves and as International Representatives of the
other International Underwriters named in Schedule B.
52
Exhibit B
SUBSIDIARIES
Percent of
Capital Stock
Beneficially Owned by
Xxxx-Xxxxxx Automotive,
Name of Subsidiary Inc. or the Subsidiaries
------------------ ------------------------
Xxxx-Xxxxxx Automotive Powertrain Systems Corporation 100
Xxxx-Xxxxxx Automotive South Asia Corporation 100
Xxxxx-Xxxxxx Pvt., Ltd. 60
Huazhong Warner Transmission Company 60
Xxxx-Xxxxxx Automotive Powertrain
Service Center Corporation 100
Xxxx-Xxxxxx Automotive Powdered Metals Corporation 100
Xxxx-Xxxxxx Automotive Diversified Transmission
Products Corporation 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems Corporation 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems
Corporation of Michigan 100
Xxxx-Xxxxxx Automotive Control Systems Holding Corporation 100
Xxxx-Xxxxxx Automotive Control Systems Europe S.A.S. 90
Societe de l'Usine de la Marque 100
Xxxx-Xxxxxx Automotive Xxxxx TEC Corporation 100
Xxxx-Xxxxxx Automotive (Canada) Ltd. 100
Xxxx-Xxxxxx Automotive Japan Corporation 100
Xxxx-Xxxxxx Automotive K.K. 100
Xxxx-Xxxxxx Automotive Taiwan Co., Ltd. 100
B.W. Componentes Mexicanos de Transmissiones S.A. de C.V. 86
Xxxxx TEC Europe, Sp.A 100
Xxxx-Xxxxxx Automotive Foreign Sales Corporation 100
53
B-2
Xxxx-Xxxxxx Automotive Automatic Transmission Systems Corporation 100
Xxxx-Xxxxxx Automotive Europe Corporation 100
Xxxx-Xxxxxx Automotive GmbH 100
Borg & Xxxx Torque Systems, Inc. 100
Xxxx-Xxxxxx Automotive-NW Corporation 100
Xxxx-Xxxxxx Automotive Korea, Inc. 60
Creon Insurance Agency, Ltd. 100
Creon Trustees, Ltd. 100
