Exhibit 1
Form of Underwriting Agreement
_______________, 1999
Bear, Stearns & Co. Inc.
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Statia Terminals Group N.V., a Netherlands Antilles company (the
"Company"), agrees with Bear, Stearns & Co. Inc., Morgan Stanley & Co.
Incorporated, Prudential Securities Incorporated and Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated (the "Representatives"), subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") an aggregate of 7,600,000 shares (the
"Firm Shares") and, at the election of the Underwriters, up to 760,000
additional shares (the "Optional Shares") of common shares, par value $0.01 per
share (the "Common Shares") of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares"). Statia Terminals Group N.V., Statia
Terminals International N.V., Statia Terminals Corporation N.V., Statia
Terminals N.V., Saba Trustcompany N.V., Bicen Development Corporation N.V.,
Seven Seas Steamship Company (Sint Eustatius) N.V., Statia Laboratory Services
N.V., Statia Tugs N.V. (collectively, the "Netherlands Antilles Subsidiaries"),
Statia Terminals Canada, Incorporated, Point Tupper Marine Services Limited Nova
Scotia (together, the "Canadian Subsidiaries"), Statia Terminals New Jersey,
Inc., Statia Terminals Delaware, Inc., Statia Terminals, Inc., W.P. Company,
Inc., Seven Seas Steamship Company, Inc. (collectively, the "U.S. Subsidiaries")
[and Petroterminal de Panama, S.A.] are referred to herein as the
"Subsidiaries."
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1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) The Company is eligible to file a Form S-1 with the
Securities and Exchange Commission (the "Commission") to register
securities for sale in the United States and a registration statement
on Form S-1 (File No. 333-72317) (the "Initial Registration
Statement") in respect of the Shares has been filed with the
Commission; the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, for each of the other Underwriters, have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"),
which became effective upon filing, no other document with respect to
the Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act
is hereinafter called a "Preliminary Prospectus"); the various parts
of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the
time it was declared effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus";
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Bear, Stearns & Co. Inc.
expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform,
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in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement
and any amendment thereto and, as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, 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; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Bear, Stearns & Co. Inc.
expressly for use therein;
(iv) Except for Statia Terminals Virgin Islands Corporation,
which is an inactive subsidiary with minimal or no assets and is
currently being liquidated, upon the closing of the offering, the
Subsidiaries will be the only direct or indirect subsidiaries of the
Company. Upon the closing of the offering, the Company will own 100%
of the outstanding capital stock and other securities evidencing
equity ownership of the Subsidiaries, in each case free and clear of
any pledge, fiduciary transfer, security interest, claim, lien,
limitation on voting rights or encumbrance, and all such securities
will have been duly authorized and validly issued, fully paid and
nonassessable and will not have been issued in violation of, or
subject to, any preemptive or similar rights. Upon the closing of the
offering, there will not be any outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest of any
Subsidiary;
(v) Neither the Company nor any of the Subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, collision, grounding, spill, explosion, flood,
hurricane, storm or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any
of the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity, results of operations or prospects of the
Company and the Subsidiaries, otherwise than as set forth in the
Prospectus;
(vi) The Company and the Subsidiaries have good and marketable
title to all real and personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by
the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the
Subsidiaries;
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(vii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
Netherlands Antilles and has all requisite corporate power and
authority, and all necessary authorizations, approvals, orders,
licenses, certificates and permits of and from regulatory or
governmental officials, bodies and tribunals, except where the
failure to obtain such authorizations, approvals, orders, licenses,
certificates and permits would not result in a Material Adverse
Effect (as defined below), to carry on its business as it is
currently being conducted and as described in the Prospectus and own,
lease, license and operate its respective properties in accordance
with its business as currently conducted. The Company is duly
qualified and in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business
or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not, either
individually or in the aggregate, result in a Material Adverse
Effect. A "Material Adverse Effect" means any material adverse effect
on the business, condition (financial or other), properties, assets,
liabilities, results of operations or prospects of the Company and
the Subsidiaries taken as a whole;
(viii) Each of the Subsidiaries has been duly incorporated or
organized, as the case may be, is validly existing as a corporation
in good standing under the laws of its respective jurisdiction of
incorporation and has all requisite corporate power and authority,
and all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from regulatory or governmental
officials, bodies and tribunals, except where the failure to obtain
such authorizations, approvals, orders, licenses, certificates and
permits would not result in a Material Adverse Effect, to carry on
its business as it is currently being conducted and as described in
the Prospectus and own, lease, license and operate its respective
properties in accordance with its business as currently conducted.
Each of the Subsidiaries is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not, either individually or in the aggregate,
result in a Material Adverse Effect;
(ix) The Company has all requisite corporate power and
authority to execute, deliver and perform all of its obligations
under this Agreement and to consummate the transactions contemplated
by this Agreement and, without limitation, the Company has all
requisite corporate power and authority to issue, sell and deliver
the Shares;
(x) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Common Shares contained in the Prospectus; and all of the issued
shares of capital stock of each Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; the holders of the
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to acquire the Shares; as of the date
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hereof there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, the Common Shares or
any other class of capital stock of the Company (except as set forth
in the Prospectus) and there are no restrictions on subsequent
transfers of the Shares under the laws of the Netherlands Antilles
(except as set forth in the Prospectus), Canada or of the United
States;
(xi) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Common
Shares contained in the Prospectus;
(xii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities
(hereinafter referred to as a "Governmental Agency") having
jurisdiction over the Company, any of the Subsidiaries or any of
their properties or any stock exchange authorities (hereinafter
referred to as "Governmental Authorizations") required for the due
authorization, execution, delivery and performance by the Company of
this Agreement have been obtained or made and are in full force and
effect;
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xiv) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the
current laws and regulations of the Netherlands Antilles be paid in
United States Dollars that may be freely transferred out of the
Netherlands Antilles, and all such dividends and other distributions
will not be subject to withholding or other taxes under the laws and
regulations of the Netherlands Antilles and are otherwise free and
clear of any other tax withholding or deduction in the Netherlands
Antilles and without the necessity of obtaining any Governmental
Authorization in the Netherlands Antilles;
(xv) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the
current laws and regulations of Canada be paid in United States
Dollars that may be freely transferred out of Canada, and all such
dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Canada and are
otherwise free and clear of any other tax withholding or deduction in
Canada and without the necessity of obtaining any Governmental
Authorization in Canada;
(xvi) The issue and sale of the Shares to be sold by the
Company hereunder and the compliance by the Company with all of the
provisions of this Agreement will not violate, conflict with or
constitute a breach of any of the terms or provisions of, or a
default under (or
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an event that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in the
creation or imposition of a lien, charge or encumbrance on any
property or assets of the Company or any of the Subsidiaries or an
acceleration of any indebtedness of any of the Company or the
Subsidiaries pursuant to (A) the charter, constitutive documents or
bylaws of either of the Company or any of the Subsidiaries, (B) any
Material Agreement (as defined below), (C) any statute, rule or
regulation applicable to the Company or any of the Subsidiaries or
their assets or properties or (D) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority
having jurisdiction over any of the Company or the Subsidiaries or
their assets or properties that, in the case of clauses (B), (C) and
(D) above, would result in a Material Adverse Effect. No consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or
foreign, is required to be obtained or made by the Company for the
execution, delivery and performance by the Company and the
Subsidiaries of this Agreement, except (x) such as have been or will
be obtained or made prior to the closing of this offering, (y) such
as may be required by the National Association of Securities Dealers,
Inc. (" NASD"). No consents or waivers from any other person or
entity are required for the execution, delivery and performance of
this Agreement other than such consents and waivers as have been or
will be obtained [prior to the closing of this offering];
(xvii) Neither the Company nor any of the Subsidiaries is (A)
in violation of its charter, constitutive documents or bylaws, (B) in
default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond, debenture,
note, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, authorization, permit,
certificate or other agreement or instrument to which any of them is
a party or by which any of them is bound or to which any of their
assets or properties is subject (collectively, "Material Agreements")
or (C) in violation of any law, statute, rule, regulation, judgment
or court decree of any domestic or foreign court with jurisdiction
over any of them or any of their assets or properties or other
governmental or regulatory authority, agency or other body, that, in
the case of clauses (B) and (C) above, would result in a Material
Adverse Effect. There exists no condition that, with notice, the
passage of time or otherwise, would constitute a default by either
the Company or any of the Subsidiaries under any such document or
instrument or result in the imposition of any penalty or the
acceleration of any indebtedness, other than penalties, defaults or
conditions that would not result in a Material Adverse Effect;
(xviii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the Netherlands Antilles or
Canada or any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery by the Company to or
for the respective accounts of the Underwriters or the sale and
delivery outside the Netherlands Antilles or Canada by the
Underwriters of the Shares to the initial purchasers thereof;
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(xix) Neither the Company nor any of the Subsidiaries has
taken, directly or indirectly, any action that was designed to or
that has constituted or which that reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(xx) The statements set forth in the Prospectus under the
caption "Description of Common Shares", insofar as they purport to
constitute a summary of the terms of the Common Shares, under the
captions "Risk Factors--Risks Inherent in Our Business," "Cash
Available for Payment of Dividends," "Management's Discussion and
Analysis of Financial Condition and Results of Operations,"
"Business," "Certain Relationships and Related Transactions" and
"Taxation," and under the caption "Plan of Distribution," insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xxi) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of the Subsidiaries is a party or of which any property of the
Company or any of the Subsidiaries is the subject which, if
determined adversely to the Company or any of the Subsidiaries, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders'
equity, results of operations or prospects of the Company and the
Subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(xxii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xxiii) The Company is not a Passive Foreign Investment
Company ("PFIC") within the meaning of Section 1296 of the United
States Internal Revenue Code of 1986, as amended, and is not likely
to become a PFIC;
(xxiv) Neither the Company nor any of the Subsidiaries or, to
the knowledge of the Company and the Subsidiaries, any employee or
agent of the foregoing has made any payment of funds or received or
retained any funds in violation of any law, rule or regulation or of
a character required to be disclosed in the Prospectus;
(xxv) The Company and each of the Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders
and other concessions of and from all Governmental Agencies that are
necessary to own or lease their other properties and conduct their
businesses as described in the Prospectus;
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(xxvi) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075 of the Florida
Statutes;
(xxvii) At _____, the Company would have had, on the
consolidated pro forma basis indicated in the Prospectus (and any
amendment or supplement thereto), a capitalization as set forth
therein. The financial statements (including the related notes and
supporting schedules) included in the Registration Statement, the
Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto) present fairly in all material respects the
financial position, results of operations and cash flows of the
Company and its consolidated subsidiaries purported to be shown
thereby on the basis stated therein at the respective dates or for
the respective periods that have been prepared in accordance with
generally accepted accounting principles in the United States ("U.S.
GAAP") consistently applied throughout the periods involved. The
selected historical and pro forma information set forth in the
Registration Statement, the Preliminary Prospectus and the Prospectus
(and any amendment or supplement thereto) under the caption "Selected
Consolidated Financial Data" are accurately presented in all material
respects and prepared on a basis consistent with the audited and
unaudited historical consolidated financial statements and pro forma
financial statements from which that have been derived. The pro forma
financial statements of the Company included in the Registration
Statement, the Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto) have been prepared in all material
respects in accordance with the applicable accounting requirements of
Article 11 of Regulation S-X of the Commission; the assumptions used
in the preparation of such pro forma financial statements are, in the
opinion of the management of the Company, reasonable; and the pro
forma adjustments reflected in such pro forma financial statements
have been properly applied to the historical amounts in compilation
of such pro forma financial statements;
(xxviii) The Company and each of the Subsidiaries make and
keep books, records and accounts, which, in reasonable detail,
accurately and fairly reflect their respective transactions and
dispositions of assets, and maintain systems of internal accounting
controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization, (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S.
GAAP and to maintain accountability for assets, (C) access to assets
is permitted only in accordance with management's general or specific
authorization, and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xxix) Arthur Andersen LLP, which has certified certain
financial statements of the Company and the Subsidiaries are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
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(xxx) No labor disturbance by the employees of any of the
Company or the Subsidiaries exists or, to the actual knowledge of the
Company or the Subsidiaries, is imminent that might reasonably be
expected to have a Material Adverse Effect; the Company and the
Subsidiaries are in compliance in all respects with, as applicable
and except where a failure to so comply would not have a Material
Adverse Effect, (A) all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA") or (B) any similar Netherlands Antilles or Canadian federal
or provincial legislation; no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or the Subsidiaries would have any
liability; none of the Company or the Subsidiaries has incurred or
expects to incur liability under (1) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (2)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); each "pension plan" that is maintained or
contributed to by the Company or the Subsidiaries that is intended to
be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, that
would cause the loss of such qualification; and each employee benefit
or pension plan that the Company or the Subsidiaries (as applicable)
maintain or to which they are obligated to contribute and that is
subject to the Pension Benefits Standards Act, 1985 (Canada), to any
other Canadian federal law regulating employee benefit or pension
plans or to any provincial law regulating employee benefit plans (a
"Canadian Plan") is in compliance in all material respects with such
laws, to the extent applicable. Neither the Company nor any of the
Subsidiaries has incurred any material liability under any such
Canadian Plan or otherwise on account of any failure to meet the
contribution or minimum funding requirements applicable to, or the
administration or termination of, any such Canadian Plan, and no
event has occurred and no conditions exist that present a material
risk that the Company or the Subsidiaries (as applicable) will incur
liabilities on account of the foregoing circumstances that are
material in the aggregate;
(xxxi) The Company and each of the Subsidiaries maintain
insurance covering their respective properties, assets, operations,
personnel and businesses, and such insurance is of such type and in
such amounts in accordance with customary industry practice to
protect the Company and the Subsidiaries and their businesses.
Neither the Company nor any of the Subsidiaries has received notice
from any insurer or agent of such insurer that any material capital
improvements or other material expenditures will have to be made in
order to continue any insurance maintained by any of them other than
capital improvements and other expenditures that have been budgeted
by the Company and the Subsidiaries, as the case may be;
(xxxii) The offering and sale of the Common Shares as
contemplated by this Agreement does not give rise to any rights,
other than those that have been waived or satisfied, for or relating
to the registration of any capital stock or other securities of the
Company;
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(xxxiii) All tax returns required to be filed by the Company
and each of the Subsidiaries have been filed in all jurisdictions
where such returns are required to be filed; and all taxes, including
withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities or that are
due and payable have been paid, other than those being contested in
good faith and for which reserves have been provided in accordance
with generally accepted accounting principles or those currently
payable without penalty or interest, except where the failure to make
any such filing or payment would not have a Material Adverse Effect.
To the knowledge of the Company and each of the Subsidiaries, there
are no material proposed additional tax assessments against any of
them or their assets or property;
(xxxiv) Except as otherwise described in the Prospectus, the
Company and the Subsidiaries are (A) in compliance with any and all
applicable foreign, federal, provincial, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (C) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals would not, singly or in the aggregate, have a
Material Adverse Effect on the Company and the Subsidiaries, taken as
a whole;
(xxxv) Except as otherwise described in the Prospectus, in the
ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material
Adverse Effect on the Company and the Subsidiaries, taken as a whole;
and the description in the Registration Statement of the agreement of
Praxair, Inc. to pay certain environmental costs of the Company is
accurate in all material respects and such agreement is in full force
and effect;
(xxxvi) As of __________, neither the Company nor any of the
Subsidiaries had any material liabilities or obligations, direct or
contingent, that were not set forth in the Company's consolidated
balance sheet as of December 31, 1998 or in the notes thereto. Since
December 31, 1998 and up to the Closing Date (as defined in Section 4
hereof), except as set forth in the Prospectus, (A) neither the
Company nor any of the Subsidiaries has (1) incurred any liabilities
or obligations, direct or contingent, that are not in the ordinary
course of business that would have a Material Adverse Effect or (2)
entered into any material transaction not in the ordinary course of
business, (B) there has not been any event or development in respect
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of the business, development or financial condition of the Company or
any of the Subsidiaries that would, either individually or in the
aggregate, result in a Material Adverse Effect and (C) there has been
no dividend or distribution of any kind declared, paid or made by
either the Company or any of the Subsidiaries on any class of their
capital stock;
(xxxvii) Except as described under the caption "Certain
Relationships and Related Transactions" in the Prospectus, there are
no contracts, agreements or understandings between the Company or any
of the Subsidiaries and any other person other than the Underwriters
that would give rise to a valid claim against the Company, the
Subsidiaries or the Underwriters for a brokerage commission, finder's
fee or like payment in connection with the issuance, purchase and
sale of the Shares;
(xxxviii) No consent, approval, authorization, exemption,
order or decree of any Netherlands Antilles court or governmental or
regulatory agency or body not otherwise obtained prior to the closing
of this offering is required to permit Statia Terminals International
N.V. to effect payments of dividends on the Shares, if any, or any
payments on a non-judicial winding-up of Statia Terminals
International N.V., in United States dollars;
(xxxix) The statistical and market-related data included in
the Prospectus are based on or derived from sources that the Company
believe to be reliable and accurate in all material respects and
represent the Company's good faith estimates that are made on the
basis of data derived from such sources;
(xl) The Company has reviewed its operations and that of the
Subsidiaries to evaluate the extent to which the business or
operations of the Company or any of its Subsidiaries will be affected
by the Year 2000 Problem (as defined below). As a result of such
review, (A) the Company has no reason to believe, and does not
believe, that (1) there are any issues related to the Company's
preparedness to address the Year 2000 Problem that are of a character
required to be described or referred to in the Registration Statement
or Prospectus that have not been accurately described in the
Registration Statement or Prospectus and (2) the Year 2000 Problem
will not have a Material Adverse Effect on the condition, financial
or otherwise, or on the earnings, business or operations of the
Company and the Subsidiaries, taken as a whole, or result in any
material loss or interference with the business or operations of the
Company and the Subsidiaries, taken as a whole; and (B) the Company
reasonably believes, after due inquiry, that the suppliers, vendors,
customers or other material third parties used or served by the
Company and the Subsidiaries are addressing or will address the Year
2000 Problem in a timely manner, except to the extent that a failure
to address the Year 2000 Problem by any supplier, vendor, customer or
material third party would not have a Material Adverse Effect on the
condition, financial or otherwise, or on the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole. The
"Year 2000 Problem" as used herein means any significant risk that
computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or
11
electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior
to January 1, 2000;
(xli) Each certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or counsel
for the Underwriters pursuant to, or in connection with, this
Agreement shall be deemed to be a representation and warranty by the
Company or the Subsidiaries to the Underwriter as to the matters
covered by such certificate; and
(xlii) The Company has not distributed and, prior to the later
of (A) the Closing Date and (B) the completion of the distribution of
the Shares, will not distribute any offering material in connection
with the offering and sale of the Shares other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or other
materials, if any, permitted by the Act.
2. Subject to the terms and conditions herein set forth herein (a)
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $________, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares that such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase
at their election, from time to time, up to 760,000 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the Initial Closing Date (as defined in Section
4 hereof) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the Company's authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
12
4. The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Bear, Stearns & Co. Inc. may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to Bear, Stearns & Co. Inc., through the facilities of the Depository Trust
Company ("DTC") for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same day) funds to an account designated by the Company. The Company
will cause the certificates representing the Shares to be made available for
checking at least twenty-four hours prior to the Closing Date with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office").
(a) The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., New York City time, on __________,
1999 or such other time and date as Bear, Stearns & Co. Inc. and the Company may
agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York City time, on the date specified by Bear, Stearns & Co. Inc. in the written
notice given by Bear, Stearns & Co. Inc. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Bear, Stearns &
Co. Inc. and the Company may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "Initial Closing Date", such
time and date for delivery of the Optional Shares, if not the Initial Closing
Date, is herein called an "Option Closing Date", and each such time and date for
delivery is herein called a "Closing Date".
(b) The documents to be delivered at each Closing Date by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7 hereof, will be delivered at the offices of
Andrews & Kurth L.L.P., 805 3rd Avenue, New York, New York 10022 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Closing Date. A meeting will be held at the Closing Location at _______,
New York City time, on the New York Business Day next preceding such Closing
Date, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Closing Date that shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
13
Prospectus has been filed and to furnish you with copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatened initiation of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) From time to time to promptly take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may from time to time reasonably request, and, if the
delivery of a Prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus was delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
that will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and the Subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
14
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus
[and pursuant to an effective registration statement under the Act], not to
offer, sell, contract to sell, establish or increase a put equivalent position
relating to, or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Common Shares or
Subordinated Shares, including but not limited to any securities that are
convertible into, exchangeable for or derivative of, or that represent the right
to receive, Common Shares or Subordinated Shares or any such substantially
similar securities and not to register any Subordinated Shares under the Act,
purchase any Subordinated Shares or grant any options or warrants to purchase
Common Shares (in each case, other than issuances of Common Shares or
Subordinated Shares in connection with certain acquisitions or capital
improvements that are accretive on a per Share basis or pursuant to employee
stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of Bear, Stearns & Co. Inc. and
Morgan Stanley & Co. Incorporated;
(f) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report in English (including a
balance sheet and statements of income, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) and prepared in conformity with U.S. GAAP and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and the Subsidiaries for such quarter in reasonable detail and prepared
in accordance with U.S. GAAP;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any securities exchange
on which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and the Subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) Not to (and to cause the Subsidiaries not to) take,
directly or indirectly, any action which is designed to or that constitutes or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the sale
or resale of the Shares;
15
(j) To use its best efforts to list for quotation the Shares
on the New York Stock Exchange ("NYSE");
(k) During the period of three years after the last date of
original issuance of the Shares, the Company will not be or become an
"investment company" under the Investment Company Act; and
(l) To do and perform all things required to be done and
performed under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent applicable to it regarding the delivery of the
Shares.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay all costs and expenses incident to the performance of
the obligations of the Company hereunder, including those in connection with:
(a) the fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery of the
Shares under the Act and all other reasonable fees and expenses in connection
with the preparation, printing, filing and distribution of the Registration
Statement (including financial statements and exhibits), any Preliminary
Prospectus and the Prospectus and all amendments and supplements thereto
including the mailing and delivering of copies thereof to the Underwriters and
dealers; (b) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (c) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (d) all fees and
expenses in connection with listing the Shares on the NYSE; (e) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
sale of the Shares; (f) the cost of preparing stock certificates; (g) the cost
and charges of any transfer agent, registrar and/or depositary; (h) the cost of
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon; (i) all miscellaneous expenses referred
to in Part II of the Registration Statement; (j) costs and expenses incurred by
the Company and its representatives relating to meetings with, and presentations
to, prospective purchasers of the Shares reasonably determined by the
Underwriters to be necessary or desirable to effect the sale of the Shares to
the public, including, without limitation, expenses associated with the
production of road show slides and graphics, travel and lodging expenses of the
representatives and officers of the Company, and the cost of any aircraft
chartered in connection with the road show; and (k) all other costs and expenses
incident to the performance of its obligations hereunder that are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel and any advertising expenses connected with any offers they may
make.
16
7. As to the Shares to be delivered at each Closing Date, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
to the conditions that all representations and warranties and other statements
of the Company herein are, at and as of such Closing Date, true and correct,
that the Company shall have performed all of its obligations hereunder required
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Andrews & Kurth L.L.P., counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Closing
Date, with respect to the matters covered in paragraphs [(i), (ii), (v), (vii),
and (xvii)] of subsection (c) below as well as such other related matters as you
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) White & Case LLP, counsel for the Company shall have
furnished to you their written opinion, dated as of such Closing Date, in form
and substance satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by the
Company;
(ii) Each of the U.S. Subsidiaries has been duly incorporated
and is validly existing as a company in good standing under the laws
of its respective jurisdiction of incorporation and is duly qualified
to transact business as a foreign corporation and is in good standing
under the laws of all other jurisdictions where the ownership or
leasing of its respective properties or the conduct of its respective
businesses requires such qualification (except where the failure to
be so qualified would not, individually or in the aggregate, have a
Material Adverse Effect, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus. All of the issued shares of capital stock of each U.S.
Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims (such counsel being entitled to rely in respect of the
opinion in this clause, in respect to matters of fact, upon
certificates of officers of the Company or the U.S. Subsidiaries,
provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and
certificates);
(iii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of
this Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court")
in any action arising out of
17
or relating to this Agreement or the transactions contemplated
hereby, has validly and irrevocably waived any objection to the venue
of a proceeding in any such court, and has validly and irrevocably
appointed the Authorized Agent (as defined herein) as its authorized
agent for the purpose described in Section 14 hereof; and service of
process effected on such agent in the manner set forth in Section 14
hereof will be effective to confer valid personal jurisdiction over
the Company;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries
is a party or of which any property of the Company or any of the
Subsidiaries is the subject which, if determined adversely to the
Company or any of the Subsidiaries would individually or in the
aggregate have a Material Adverse Effect on the current or future
consolidated financial position, shareholders' equity, results of
operations or prospects of the Company and the Subsidiaries taken as
a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(v) The Registration Statement became effective under the Act
on or prior to the date hereof; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued under the
Act; and to the best of such counsel's knowledge, no proceedings
therefor have been initiated or threatened or are pending or
contemplated by the Commission;
(vi) The issue and sale of the Shares being delivered at such
Closing Date by the Company and the compliance by the Company with
all of the provisions of this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a party or
by which the Company or any of the Subsidiaries is bound or to which
any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation of the Company or
any of the Subsidiaries or any statute or any order, rule or
regulation known to such counsel of any United States Federal or New
York Governmental Agency having jurisdiction over the Company or any
of the Subsidiaries or any of their properties;
(vii) No Governmental Authorization is required for the issue
and sale of the Shares, except the registration under the Act of the
Shares, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(viii) The Company and each of the Subsidiaries have all
licenses and concessions of and from all Governmental Agencies that
are necessary to own or lease their properties and
18
conduct their businesses as described in the Prospectus; and the
Company and each of the Subsidiaries have all franchises, permits,
authorizations, approvals and orders and other licenses and
concessions of and from all Governmental Agencies that are necessary
to own or lease their other properties and conduct their businesses
as described in the Prospectus except where failure to obtain such
licenses, franchises, permits, authorizations, approvals and orders
will not have a Material Adverse Effect on the financial condition or
results of operations of the Company and the Subsidiaries;
(ix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(x) Neither the Company nor any of the Subsidiaries is in
violation of or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the
captions "The Offering," "The Restructuring," "Cash Dividend Policy,"
"Cash Available for Payment of Dividends--Restrictions Imposed by
Indenture," "Management," "Certain Relationships and Related
Transactions," "Description of Common Shares," "Descriptions of
Subordinated Shares," "Securities Eligible For Future Sale,"
"Taxation--United States Federal Income Taxation," and "Plan of
Distribution," insofar as they purport to describe the provisions of
the laws and regulations and documents referred to therein, are
accurate, complete and fair;
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xiii) The Company is not a PFIC within the meaning of Section
1296 of the Code, and is not likely to become a PFIC;
(xiv) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the United States or the State
of New York or to any political subdivision or taxing authority
thereof or therein in connection with (A) the sale and delivery by
the Company of the Shares to or for the respective accounts of the
Underwriters or (B) the sale and delivery outside the Netherlands
Antilles or Canada by the Underwriters of the Shares to the initial
purchasers thereof in the manner contemplated herein;
19
(xv) The opinions of such counsel set forth in the Prospectus
under the caption "Taxation--United States Federal Income Taxation"
are confirmed as of such Closing Date;
(xvi) Except as disclosed in the Registration Statement and
Prospectus, there are no outstanding (A) securities or obligations of
the Company or any of the Subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such
Subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any Subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or
(C) obligations of the Company or any Subsidiary to issue any shares
of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options;
(xvii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder and they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to such Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Closing Date (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of such Closing Date,
either the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement
or the Prospectus that are not filed or described as required.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the
United States.
(d) Smeets Thesseling Van Bokhorst Spigt, Netherlands Antilles
counsel for the Company shall have furnished to you their written opinion, dated
such Closing Date, in form and substance satisfactory to you, to the effect
that:
20
(i) The Company and each of the Netherlands Antilles
Subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Netherlands
Antilles, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company and each of the Netherlands Antilles Subsidiaries
(including the Shares being delivered at such Closing Date) have been
duly and validly authorized and issued and are fully paid and
non-assessable; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to acquire
the Shares; and there are no restrictions on subsequent transfers of
the Shares and the Shares conform to the description of the Common
Shares contained in the Prospectus;
(iii) All of the issued shares of capital stock of each
Subsidiary of the Company are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) All Governmental Authorizations required for the Shares
to be duly and validly authorized and issued have been obtained or
made and are in full force and effect;
(v) The Company and each of the Netherlands Antilles
Subsidiaries has been duly qualified to transact business as a
foreign corporation and is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its respective
properties or the conduct of its respective businesses requires such
qualification, or is subject to no material liability or disability
by reason of failure to be so qualified in any such jurisdiction
(such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(vi) Any real property and buildings held under lease by the
Company and each of the Netherlands Antilles Subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and each of the Netherlands Antilles Subsidiaries (in giving the
opinion in this clause, such counsel may state that no examination of
record titles for the purpose of such opinion has been made, and that
they are relying upon a general review of the titles of the Company
and each of the Netherlands Antilles Subsidiaries, upon opinions of
local counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of
such property by the Company or any of the Netherlands Antilles
Subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect to matters of fact, upon certificates of
officers of the Company or any of the Netherlands Antilles
Subsidiaries, provided that such
21
counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports, policies
and certificates);
(vii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending before any Governmental Agency in the Netherlands
Antilles to which the Company or any of the Netherlands Antilles
Subsidiaries is a party or of which any property of the Company or
any of the Netherlands Antilles Subsidiaries is the subject; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by any Governmental Agency or threatened
by others;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) The issuance and sale of the Shares being delivered at
such Closing Date and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation of the Company or any statute or any order, rule, or
regulation known to such counsel of any Governmental Agency having
jurisdiction over the Company or any of its properties;
(x) No Governmental Authorization of or with any Governmental
Agency is required in the Netherlands Antilles for the issuance and
sale of the Shares by the Company or the consummation by the Company
of the transactions contemplated by this Agreement;
(xi) The Company has all franchises, permits, authorizations,
approvals and orders and other licenses and concessions of and from
all Governmental Agencies in the Netherlands Antilles that are
necessary to own or lease its properties and conduct its businesses
as described in the Prospectus, except such licenses, franchises,
permits, authorizations, approvals and orders, where the failure to
obtain will not have a Material Adverse Effect on the financial
condition or results of operations of the Company;
(xii) The statements (A) in the Prospectus under the captions
"Enforceability of Civil Liabilities," "Risk Factors--Netherlands
Antilles law may limit the amount of dividends we can pay you," "Risk
Factors--Our board of directors may have conflicts of interest with
you," "Risk Factors--You may not be able to sue us effectively in the
Netherlands Antilles or Canada," "Risk Factors--A non-negotiated
change of control is unlikely," "Risk Factors--The beneficial tax
status of our facilities may end," "The Restructuring," "Use of
Proceeds," "Capitalization," "Cash Dividend Policy--Effect of
Issuance of Additional Shares," "Cash Available for Payment of
Dividends--Restrictions Imposed by Netherlands
22
Antilles Law," "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Political, Inflation, Currency
and Interest Rate Risks," "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Tax Matters,"
"Business--Environmental, Health and Safety Matters,"
"Business--Employees," "Management--Directors and Executive
Officers," "Certain Relationships and Related Transactions--Board of
Directors," "Description of the Common Shares," and "Description of
the Subordinated Shares" and (B) in the Registration Statement in
Item 14, to the extent such statements relate to matters of
Netherlands Antilles law or regulation or to the provisions of
documents therein described, are true and accurate in all material
respects, and nothing has been omitted from such statements that
would make the same misleading in any material respect;
(xiii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the Netherlands Antilles or to
any political subdivision or taxing authority thereof or therein in
connection with (A) the sale and delivery by the Company of the
Shares to or for the respective accounts of the Underwriters or (B)
the sale and delivery outside the Netherlands Antilles by the
Underwriters of the Shares to the initial purchasers thereof in the
manner contemplated herein;
(xiv) Insofar as matters of the laws of the Netherlands
Antilles are concerned, the Registration Statement and the filing of
the Registration Statement with the Commission have been duly
authorized by and on behalf of the Company; and the Registration
Statement has been duly executed pursuant to such authorization by
and on behalf of the Company;
(xv) The Company's agreement to the choice of law in Section
14 hereof will be recognized by the courts of the Netherlands
Antilles; the Company can sue and be sued in its own name under the
laws of the Netherlands Antilles; the irrevocable submission of the
Company to the exclusive jurisdiction of a New York Court, the waiver
by the Company of any objection to the venue of a proceeding of a New
York Court and the agreement of the Company that this Agreement shall
be governed and construed in accordance with the laws of the State of
New York are legal, valid and binding; service of process effected in
the manner set forth in Section 12 hereof will be effective, insofar
as the laws of the Netherlands Antilles are concerned, to confer
valid personal jurisdiction over the Company; and judgment obtained
in a New York Court arising out of or in relation to the obligations
of the Company under this Agreement will be enforceable against the
Company in the courts of the Netherlands Antilles;
(xvi) The indemnification and contribution provisions set
forth in Section 8 hereof do not contravene the public policy of the
laws of the Netherlands Antilles;
(xvii) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the
current laws and regulations of the Netherlands
23
Antilles be paid in United States Dollars that may be freely
transferred out of the Netherlands Antilles, and all such dividends
and other distributions will not be subject to withholding or other
taxes under the laws and regulations of the Netherlands Antilles and
are otherwise free and clear of any other tax, withholding or
deduction in the Netherlands Antilles and without the necessity of
obtaining any Governmental Authorization in the Netherlands Antilles;
and
(xviii) The Company is not in violation of its Articles of
Incorporation (which are in conformity with the laws of the
Netherlands Antilles) or in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound.
In giving such opinion, such counsel may state that with
respect to all matters of United States federal and New York law,
they have relied upon the opinions of United States counsel for the
Company delivered pursuant to paragraph (c) of this Section 7.
(e) Stewart McKelvey Stirling Scales, Canadian counsel for Company
and the Canadian Subsidiaries shall have furnished to you their written opinion,
dated as of such Closing Date, in form and substance satisfactory to you, to the
effect that:
(i) Each of the Canadian Subsidiaries has been duly
incorporated and is validly existing as a company in good standing
under the laws of Canada, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus and all of the issued shares of capital stock of each
Canadian Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of
the opinion in this clause in respect to matters of fact upon
certificates of officers of the Company or the Canadian Subsidiaries,
provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and
certificates);
(ii) Any real property and buildings held under lease by the
Company and the Canadian Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the Canadian
Subsidiaries (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general
review of the titles of the Company and the Canadian Subsidiaries,
upon opinions of local counsel and abstracts, reports and policies of
title companies rendered or issued at or subsequent to the time of
acquisition of such property by the Company or the Canadian
Subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect to matters of fact, upon certificates of
officers of the Company or the Canadian Subsidiaries,
24
provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions, abstracts,
reports, policies and certificates);
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending before any Governmental Agency in Canada to which
the Company or any of the Canadian Subsidiaries is a party or of
which any property of the Company or any of the Canadian Subsidiaries
is the subject which, if determined adversely to the Company or any
of the Canadian Subsidiaries, would individually or in the aggregate
have a Material Adverse Effect on the current or future consolidated
financial position, shareholders' equity, results of operations or
prospects of the Company; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(iv) No Governmental Authorization of or with any Governmental
Agency is required in Canada for the issuance and sale of the Shares
by the Company or the consummation by the Company and each of the
Canadian Subsidiaries of the transactions contemplated by this
Agreement except those that have been obtained and are in full force
and effect;
(v) Each of the Canadian Subsidiaries has all licenses and
concessions of and from all Governmental Agencies that are necessary
to own or lease their properties and conduct their businesses as
described in the Prospectus; and each of the Canadian Subsidiaries
has all franchises, permits, authorizations, approvals and orders and
other licenses and concessions of and from all Governmental Agencies
that are necessary to own or lease their other properties and conduct
their businesses as described in the Prospectus except where the
failure to obtain such licenses, franchises, permits, authorizations,
approvals and orders, will not have a Material Adverse Effect on the
financial condition or results of operations of the Canadian
Subsidiaries;
(vi) None of the Canadian Subsidiaries is in violation of, or
in default in the performance or observance of, any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(vii) To the best of such counsel's knowledge, neither of the
Company nor any of the Canadian Subsidiaries is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which they are a party or by which they or any of their properties
may be bound or is in violation of its Articles of Incorporation or
By-laws;
(viii) The statements in the Prospectus under the captions
"Enforceability of Certain Civil Liabilities," "Risk Factors--You may
not be able to sue us effectively in the Netherlands
25
Antilles or Canada," "Risk Factors--Environmental and Other
Regulations," "Risk Factors--Canadian income taxes could increase,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations--Environmental, Health and Safety Matters,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations--Tax Matters," "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Legal
Proceedings," "Business--Environmental, Health and Safety Matters,"
and "Business--Employees" are true and accurate in all material
respects, and nothing has been omitted from such statements that
would make the same misleading in any material respect;
(ix) Each of the Canadian Subsidiaries' agreement to the
choice of law in Section 14 hereof will be recognized by the courts
of Canada and each Canadian Subsidiary can sue and be sued in its own
name under the laws of Canada; the irrevocable submission of each
Canadian Subsidiary to the exclusive jurisdiction of a New York
Court, the waiver by each Canadian Subsidiary of any objection to the
venue of a proceeding of a New York Court and the agreement of each
Canadian Subsidiary that this Agreement shall be governed and
construed in accordance with the laws of the State of New York are
legal, valid and binding; service of process effected in the manner
set forth in Section 12 hereof will be effective, insofar as the laws
of Canada are concerned, to confer valid personal jurisdiction over
each Canadian Subsidiary; and judgment obtained in a New York Court
arising out of or in relation to the obligations of each Canadian
Subsidiary under this Agreement will be enforceable against each
Canadian Subsidiary in the courts of Canada; and
(x) No stamp or other issuance or transfer taxes or duties and
no capital gains, income withholding or other taxes are payable by or
on behalf of the Underwriters to Canada or to any political
subdivision or taxing authority thereof or therein in connection with
(A) the sale and delivery by the Company of the Shares to or for the
respective accounts of the Underwriters or (B) the sale and delivery
outside Canada by the Underwriters of the Shares to the initial
purchasers thereof in the manner contemplated herein.
In giving such opinion, such counsel may state that with
respect to all matters of United States federal and New York law,
they have relied upon the opinions of United States counsel for the
Company delivered pursuant to paragraph (c) of this Section 7.
(f) At the time this Agreement is executed and at each Closing Date,
you shall have received a letter, from Arthur Andersen LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of each Closing Date, and in form and substance satisfactory to
you, to the effect that:
(i) they are independent certified public accountants with
respect to the Company within the meaning of the Act and the
Regulations and stating that the answer to Item 10 of the
Registration Statement is correct insofar as it relates to them;
26
(ii) in their opinion, the financial statements and schedules
of the Company included in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Securities Exchange Act of 1934 (the "Exchange Act")
and the applicable published rules and regulations of the Commission
thereunder;
(iii) on the basis of procedures consisting of a reading of
the latest available unaudited interim consolidated financial
statements of the Company and its Subsidiaries, a reading of the
minutes of meetings and consents of the shareholders and boards of
directors of the Company and its Subsidiaries and the committees of
such boards subsequent to the date of the most recent audited
consolidated balance sheet of the Company and its Subsidiaries
included or incorporated by reference in the Registration Statement
and the Prospectus, inquiries of officers and other employees of the
Company and its Subsidiaries who have responsibility for financial
and accounting matters of the Company and its Subsidiaries with
respect to transactions and events subsequent to the date of the most
recent audited consolidated balance sheet of the Company and its
Subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus and other specified
procedures and inquiries to a date not more than five days prior to
the date of such letter, nothing has come to their attention that
would cause them to believe that: (A) the unaudited consolidated
financial statements and schedules of the Company presented in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and, if applicable, the Exchange Act and the applicable
published rules and regulations of the Commission thereunder or that
such unaudited consolidated financial statements are not fairly
presented in conformity with generally accepted accounting principles
except to the extent certain footnote disclosures have been omitted
in accordance with applicable rules of the Commission under the
Exchange Act applied on a basis substantially consistent with that of
the audited consolidated financial statements included in the
Registration Statement and the Prospectus; (B) with respect to the
period subsequent to the date of the most recent consolidated balance
sheet of the Company and its Subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus there
were, as of the date of the most recent available monthly
consolidated financial statements of the Company and its
Subsidiaries, if any, and as of a specified date not more than five
days prior to the date of such letter, any changes in the capital
stock or long-term indebtedness of the Company or any decrease in the
net current assets or stockholders' equity of the Company, in each
case as compared with the amounts shown in the most recent balance
sheet presented in the Registration Statement and the Prospectus,
except for changes or decreases that the Registration Statement and
the Prospectus disclose have occurred or may occur or that are set
forth in such letter or (C) that during the period from the date
following the date of the most recent consolidated balance sheet of
the Company and its Subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus to the
date of the most recent available monthly consolidated financial
statements of the Company and its Subsidiaries, if any, and to a
specified date not more than five days prior to the date of such
letter, there was any decrease, as compared with the corresponding
27
period in the prior fiscal year, in total revenues, or total or per
share net income, except for decreases that the Registration
Statement and the Prospectus disclose have occurred or may occur or
that are set forth in such letter;
(iv) they have compared specific dollar amounts, numbers of
shares, percentages of revenues and earnings, and other financial
information pertaining to the Company and its Subsidiaries set forth
in the Registration Statement and the Prospectus, which have been
specified by you prior to the date of this Agreement, to the extent
that such amounts, numbers, percentages, and information may be
derived from the general accounting and financial records of the
Company and its Subsidiaries or from schedules furnished by the
Company, and excluding any questions requiring an interpretation by
legal counsel, with the results obtained from the application of
specified readings, inquiries, and other appropriate procedures
specified by you set forth in such letter, and found them to be in
agreement; and
(v) any unaudited pro forma consolidated financial statements
included in the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of those statements.
The Underwriters shall have also received at the time this Agreement is executed
and at each Closing Date an opinion (satisfactory in form and substance to the
Underwriters and counsel to the Underwriters), dated as of the relevant Closing
Date, of PricewaterhouseCoopers, special Netherlands Antilles tax counsel to the
Company and of Arthur Andersen, special Canadian tax counsel to the Company;
(g) (i) Neither the Company nor any of the Subsidiaries shall have
sustained, since the date of the latest audited financial statements included in
the Prospectus, any loss or interference with its business from fire, explosion,
collision, grounding, spill, flood, hurricane, storm or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the Prospectus, and (ii)
since the respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term debt of
the Company or any of the Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity, results of operations or prospects of
the Company and the Subsidiaries, otherwise than as set forth in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Closing Date on the terms and in the
manner contemplated in the Prospectus;
28
(h) The Shares to be sold by the Company at such Closing Date shall
have been duly listed for quotation on the NYSE;
(i) Prior to or on the date hereof, the Company shall have obtained
and delivered to the Underwriters executed copies of an agreement from each of
the Company's officers and directors and such of its shareholders as have been
heretofore designated by you and listed on Schedule II attached hereto
substantially to the effect set forth in Subsection 5(e) hereof (providing for a
180-day "lock-up" period) in form and substance satisfactory to you;
(j) The Company shall have complied with Section 5(c) hereof with
respect to the furnishing of Prospectuses on the New York Business Day next
succeeding the date of this Agreement;
(k) The Company shall have furnished or caused to be furnished to you
at such Closing Date, certificates of officers thereof satisfactory to you as to
the accuracy of the representations and warranties of the Company herein, at and
as of such Closing Date, as to the performance by such parties of all of their
respective obligations hereunder to be performed at or prior to such Closing
Date, and as to such other matters as you may reasonably request and the Company
shall have furnished or caused to be furnished certificates as to matters set
forth in subsections (a) and (g) of this Section, and as to such other matters
as you may reasonably request;
(l) Andrews & Kurth L.L.P., counsel to the Underwriters, shall have
been furnished with such documents as they may reasonably request to enable them
to review or pass upon the matters referred to in this Section 7 and in order to
evidence the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions contained in this
Agreement; and
(m) The Underwriters shall have received written advice from the NASD
that the NASD raises no objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements for the offering of
the Common Shares.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including, but not limited to, attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission
29
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent but
only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through you expressly for use therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have,
including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or severally, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through you
expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have, including under this Agreement. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and in the Section "Plan of Distribution" in the Prospectus constitute the
only information furnished in writing by or on behalf of any Underwriter
expressly for use in the Registration Statement relating to the Shares as
originally filed or in any amendment thereof, any related preliminary prospectus
or the Prospectus or in any amendment thereof or supplement thereto, as the case
may be.
30
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 8 is for any reason held
to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by
31
the Company and the Underwriters from the offering of the Shares or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in this Section 8 hereof, in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the relative
fault of the Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the underwriting discounts and commissions received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clauses (i) and (ii) of this Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 8 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its consent; provided, however, that such consent was
not unreasonably withheld.
9. If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective proportions that the
numbers of Firm Shares set forth opposite their
32
respective names in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
(a) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 6, 8(a) and 8(d) hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or Underwriters of its
or their liability, if any, to the other Underwriters and the Company for
damages occasioned by its or their default hereunder.
(b) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date for a
period, not exceeding five business days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus or
in any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, or any
controlling person and shall survive delivery of and payment for the Shares.
11. (a) This Agreement shall become effective, upon the later of
when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 P.M., New York time, on the fifth
full business day after the Registration Statement shall have become effective,
this Agreement shall thereupon terminate without liability to the Company or the
Underwriters except as herein expressly provided. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company by notifying you or
33
by you notifying the Company. Notwithstanding the foregoing, the provisions of
this Section 11 and of Sections 1, 6 and 8 hereof shall at all times be in full
force and effect.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Optional Shares at any time prior to an Option Closing Date, as the
case may be, if (i) any domestic or international event or act or occurrence has
materially disrupted, or in your opinion will in the immediate future materially
disrupt, the market for the Company's securities or securities in general; (ii)
the Commission or the NYSE suspends trading in the Common Shares or there is a
suspension or material limitation of trading on the NYSE or on the Nasdaq
National Market, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, on the NYSE by the
NYSE or by order of the Commission or any other governmental authority having
jurisdiction; (iii) there has been any downgrading in the rating of any of the
Company's debt securities by any "nationally recognized statistical
rating-organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iv) a banking
moratorium has been declared by a state or federal authority or a new
restriction materially adversely affecting the distribution of the Shares; (v) a
change or development involving a prospective change in the United States,
Netherlands Antilles or Canada taxation affecting the Company, the Shares or the
transfer thereof or the imposition of exchange controls by such countries has
occurred; (vi) an outbreak or escalation of hostilities has occurred involving
the United States, Netherlands Antilles or Canada or any of the Persian Gulf
States (as defined below) or the declaration by the United States, the
Netherlands Antilles, Canada or any of the Persian Gulf States of a national
emergency or war, if the effect of any such event specified in this clause (vi)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Closing Date on the terms and in the manner contemplated in the
Prospectus; or (vii) there is an occurrence of any material adverse change in
the existing financial, political or economic conditions in the United States,
Netherlands Antilles or Canada or any of the Persian Gulf States or elsewhere
which, in the judgment of the Representatives would materially and adversely
affect the financial markets or the market for the Shares and other equity
securities. For purposes of this Agreement, the term "Persian Gulf States" shall
mean Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if for any other reason, any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery
34
of the Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the Representatives at 245 Park Avenue, New
York, New York 10167, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Each of the parties hereto irrevocably (a) agrees that any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York court, (b)
waives, to the fullest extent it may effectively do so, any objection that it
may now or hereafter have to the laying of venue of any such proceeding and (c)
submits to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation, New York, New York, as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby that may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
at process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company by such
party.
35
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (a) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (b) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
36
If the foregoing is in accordance with your understanding, please
sign and return to us one of the counterparts hereof for each of the Company and
for the Representatives plus one for each counsel and upon the acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Statia Terminals Group N.V.
By: __________________________________
Name: ___________________________
Title: __________________________
Accepted as of the date hereof:
Bear, Stearns & Co. Inc.
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated
By: ______________________________________________
(Bear, Stearns & Co. Inc.)
37
SCHEDULE I
Number of Optional
Shares to be Purchased if
Total Number of Firm Maximum Option
Underwriter Shares to be Purchased Exercised
- --------------------------------------------------------------------- ---------------------- -------------------------
Bear, Stearns & Co. Inc..............................................
Morgan Stanley & Co. Incorporated ...................................
Prudential Securities Incorporated...................................
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated ..........................
Total......................................................
38
SCHEDULE II
[Names of Shareholders subject to the lock-up provision.]
39