EXHIBIT 1.1
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
9,600,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: April , 2000
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
9,600,000 Shares of Common Stock
(Par Value $.002 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
April , 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Packard BioScience Company, a Delaware corporation (the "COMPANY") and
the persons listed in Schedule B hereto (the "SELLING SHAREHOLDERS") confirm
their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("MERRILL LYNCH") and each of the other U.S.
Underwriters named in Schedule A hereto (collectively, the "U.S. UNDERWRITERS",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Merrill Lynch, Chase Securities Inc.,
Robert W. Baird & Co. Incorporated, Banc of America Securities LLC, and Thomas
Weisel Partners LLC are acting as representatives (in such capacity, the "U.S.
REPRESENTATIVES"), with respect to (i) the issue and sale by the Company and the
purchase by the U.S. Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.002 per share, of the
Company ("COMMON STOCK") set forth in said Schedule A, and (ii) the grant by the
Company and the Selling Shareholders to the U.S. Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 1,440,000 additional shares of Common Stock
to cover over-allotments, if any, of which up to 222,240 shares of Common Stock
may be sold by the Selling Shareholders.
The aforesaid 9,600,000 shares of Common Stock (the "INITIAL U.S.
SECURITIES") to be purchased by the U.S. Underwriters, and all or any part of
the 1,440,000 shares of Common Stock subject to the option described in Section
2(b) (the "U.S. OPTION SECURITIES") are hereinafter called, collectively, the
"U.S. SECURITIES". The U.S. Option Securities are to be sold by the Company and
the Selling Shareholders acting severally and not jointly.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"INTERNATIONAL PURCHASE AGREEMENT") providing for the offering by the Company of
an aggregate of 2,400,000 shares of Common Stock (the "INITIAL INTERNATIONAL
SECURITIES") through arrangements with certain underwriters outside the United
States and Canada (the "INTERNATIONAL MANAGERS") for which Merrill Lynch
International, Chase Manhattan International Limited, Robert W. Baird & Co.
Incorporated, Banc of America International Limited, and Thomas Weisel
International Limited are acting as lead managers (the "LEAD MANAGERS"), and the
grant by the Company and the Selling Shareholders to the International Managers,
acting severally and not jointly, of an option to purchase all or any part of up
to 360,000 additional shares of Common Stock solely to cover over-allotments, if
any (the "INTERNATIONAL OPTION SECURITIES" and, together with the U.S. Option
Securities, the "OPTION SECURITIES") of which up to 55,560 shares of Common
Stock may be sold by the Selling Shareholders. The International Option
Securities are to be sold by the Company and the Selling Shareholders acting
severally and not jointly.
The Initial International Securities and the International Option
Securities are hereinafter called the "INTERNATIONAL SECURITIES". It is
understood that the Company is not obligated to sell and the U.S. Underwriters
are not obligated to purchase, any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "UNDERWRITERS", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"INITIAL SECURITIES", and the U.S. Securities and the International Securities
are hereinafter collectively called the "SECURITIES".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "INTERSYNDICATE AGREEMENT") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch (in such capacity, the "GLOBAL COORDINATOR").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
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The Company and the Underwriters agree that up to 1,200,000 shares of
the Initial Securities to be purchased by the Underwriters (the "RESERVED
SECURITIES") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships with the Company, as part of
the distribution of the Securities by the Underwriters, subject to the terms of
this Agreement, the applicable rules, regulations and interpretations of the
National Association of Securities Dealers, Inc. and all other applicable laws,
rules and regulations. To the extent that such Reserved Securities are not
orally confirmed for purchase by such eligible employees and persons having
business relationships with the Company by the end of the first business day
after the date of this Agreement, such Reserved Securities may be offered by the
Underwriters as part of the offering contemplated hereby.
On March 21, 2000, the Company amended its certificate of incorporation
to change the authorized capital stock of the Company to consist of 200,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01
per share, of the Company (the "CHARTER AMENDMENT"), and to convert each
outstanding share of Common Stock into 5 shares of Common Stock (the "STOCK
SPLIT" and, together with the Charter Amendment, the "RECAPITALIZATION").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-31996) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(THE "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of
the 1933 Act Regulations. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "FORM OF U.S. PROSPECTUS") and one relating to the International
Securities (the "FORM OF INTERNATIONAL PROSPECTUS"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption "Underwriting".
The information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION." Each
Form of U.S. Prospectus and Form of International Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information is herein called the "REGISTRATION STATEMENT." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "RULE 462(B) REGISTRATION STATEMENT," and after such filing
the term "REGISTRATION STATEMENT" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
PROSPECTUS" and the "INTERNATIONAL PROSPECTUS," respectively,
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and collectively, the "PROSPECTUSES." For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus or the International Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective times of
issuance and at the Closing Time, complied and will comply in all
material respects with any applicable securities laws or regulations of
foreign jurisdictions in which the Prospectuses and such preliminary
prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved
Securities. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the Prospectuses or any amendments or supplements thereto
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(including any prospectus wrapper) made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or the Prospectuses or any amendments or
supplements thereto (including any prospectus wrapper).
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424(b), complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent otherwise permitted by
Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectuses, together
with the related schedule and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved
(except as set forth in the notes thereto). The supporting schedule
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein or
in any amendment or supplement thereto, (A) there has been no material
adverse change in the condition, financial or otherwise, results of
operation, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "MATERIAL ADVERSE EFFECT"), (B)
there has been no transaction entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which is material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
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(v) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing could not reasonably be expected to result in a
Material Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "SUBSIDIARY" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement (including with respect to the credit agreement
referred to in Exhibit 10.2 to the Registration Statement and the
amendments thereto (the "CREDIT AGREEMENT")) all of the issued and
outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. All Subsidiaries of the
Company are listed on Exhibit 21 to the Registration Statement.
(vii) CAPITALIZATION. The Company had at the date
indicated, a duly issued, authorized and outstanding capitalization as
set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" and notes thereto. The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other
similar rights of any securityholder of the Company; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company with the exception of the issuance by the
Company of an aggregate of 26,500 authorized but unissued shares of
Common Stock (the "ISSUED SHARES") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock
in the aggregate), in March 1987, March 1988 and March 1989
(collectively, the "STOCK ISSUANCES"); with respect to the Issued
Shares, to the Company's knowledge, the holders
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of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of
such Common Stock outstanding immediately prior to the Stock Issuances
have, at any time since, threatened to, or notified the Company of
their intent to, exercise preemptive rights as to the Issued Shares or
brought, or threatened to bring, any claim at law or in equity
challenging the Stock Issuances; to the Company's knowledge, none of
the Option Securities was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized by
the Company for issuance and sale to the U.S. Underwriters pursuant to
this Agreement and the International Managers pursuant to the
International Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment to the
Company of the consideration set forth herein and the International
Purchase Agreement, respectively, will be validly issued, fully paid
and non-assessable; the Common Stock conforms in all material respects
to all statements relating thereto contained in the Prospectuses and
the description of the Common Stock under the caption "Description of
Capital Stock" summarizes in all material respects the rights set
forth in the instruments defining the same; no holder of the
Securities to be sold by the Company will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities by the Company is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "AGREEMENTS AND INSTRUMENTS")
except for such defaults that could not reasonably be expected to
result in a Material Adverse Effect; and the execution, delivery and
performance by the Company of this Agreement and the International
Purchase Agreement and the consummation by it of the transactions
contemplated in this Agreement, the International Purchase Agreement
and in the Registration Statement (including the issuance and sale by
the Company of the Securities and the use by it of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action,
including (if required) board approval, and do not and will not,
whether with or without the giving of notice or passage of time
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or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements
and Instruments (except for such conflicts, breaches, defaults,
Repayment Events, or liens, charges or encumbrances that could not
reasonably be expected to result in a Material Adverse Effect), nor
will such action result in any violation by the Company (A) of the
provisions of the charter or by-laws of the Company or any Subsidiary
or (B) any existing applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Subsidiary or any of their assets, properties
or operations except, in the case of (B) for such violations that
could not reasonably be expected to result in a Material Adverse
Effect. As used herein, a "REPAYMENT EVENT" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any
subsidiary.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, could reasonably be expected to
result in a Material Adverse Effect.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect
the value of the properties or assets of the Company, in the aggregate,
or the consummation of the transactions contemplated in this Agreement
and the International Purchase Agreement or the performance by the
Company of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or
documents required pursuant to the 1933 Act to be described in the
Registration Statement or the Prospectuses or to be filed as exhibits
thereto which have not been so described and filed as required.
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(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its subsidiaries own or possess, or believe they can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on their business as presently conducted (except as the
failure to own, possess or acquire such Intellectual Property could not
reasonably be expected to have a Material Adverse Effect), and, except
as disclosed in the Prospectuses, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, except
for such infringements, conflicts, invalidities and inadequacies that
could not reasonably be expected to result in a Material Adverse
Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Securities under this Agreement and the International
Purchase Agreement or the consummation by it of the transactions
contemplated by this Agreement and the International Purchase
Agreement, except (i) such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common
Stock or under state securities or blue sky laws or (except with
respect to the Reserved Securities) under foreign securities laws,
(ii) such as have been already obtained under the laws and regulations
of jurisdictions outside the United States in which the Reserved
Securities are offered, (iii) which shall have been obtained or made
prior to Closing Time or, if applicable, the Time of Delivery, and
(iv) such as have been already obtained or as may be required under
the laws and regulations of jurisdictions outside the United Staes in
which the Securities (other than the Reserved Securities) are offered.
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and
its subsidiaries possess all material permits, licenses, approvals,
consents and other authorizations (collectively, "GOVERNMENTAL
LICENSES") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business
presently conducted by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply could not reasonably be
expected to result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect could not
reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which could reasonably be expected to result in a
Material Adverse Effect.
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(xvii) TITLE TO PROPERTY. The Company and its subsidiaries
have good and marketable title to all real and personal properties
owned by them, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except, in each case, (a) as described in the Prospectuses (including
with respect to the Credit Agreement) or (b) such as are neither
material in amount nor material in relation to the business presently
conducted by the Company and its subsidiaries, considered as one
enterprise; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectuses, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, except
for such claims that could not reasonably be expected to result in a
Material Adverse Effect.
(xviii) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 ACT") and the
rules and regulations of the Commission thereunder.
(xix) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement or except as could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any existing federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) each of the Company and its subsidiaries has all permits,
authorizations and approvals required under any applicable
Environmental Laws and is in compliance with their requirements, (C)
there are no pending or, to the knowledge of the Company, threatened,
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be
10
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xx) REGISTRATION RIGHTS. Except as disclosed in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxi) YEAR 2000 PROBLEM. Neither the Company nor any of its
Subsidiaries has experienced any disruptions of its operations as a
result of Year 2000 issues, except as could not reasonably be expected
to have a Material Adverse Effect. The Company has no reason to
believe, and does not believe, that the Year 2000 issue will have a
material adverse effect on the general affairs, management, the current
or future consolidated financial position, business prospects,
stockholders' equity or results of operations of the Company and its
subsidiaries or result in any material loss or interference with the
Company's business or operations.
(xxii) INSURANCE. The Company and its subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and
effect.
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS. No
relationship, direct or indirect, exists between or among any of the
Company or any affiliate of the Company, on the one hand, and any
director, officer or stockholder of any of them, on the other hand,
which is required by the 1933 Act or by the 1933 Act Regulations to be
described in the Registration Statement or the Prospectuses which is
not so described or is not described as required.
(xxiv) COMPLIANCE WITH CUBA ACT. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder, or is exempt therefrom.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder severally and not jointly represents and warrants to each
U.S. Underwriter as of the date hereof, as of the Closing Time, and, if such
Selling Shareholder is selling Option Securities on a Date of Delivery, as of
such Date of Delivery, and agrees with each U.S. Underwriter, as follows:
(i) ACCURATE DISCLOSURE. To the actual knowledge of each Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are
11
true and correct; such Selling Shareholder has reviewed and is
familiar with the Registration Statement and the Prospectuses and to
such Selling Shareholder's actual knowledge neither the Prospectuses
nor any amendments or supplements thereto (including any prospectus
wrapper) contains any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) AUTHORIZATION OF AGREEMENTS. Such Selling Shareholder
has the full right, power and authority to enter into this Agreement
and an Irrevocable Power of Attorney and Custody Agreement (the
"IRREVOCABLE POWER OF ATTORNEY AND CUSTODY AGREEMENT") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder. The execution and delivery of this Agreement
and the Irrevocable Power of Attorney and Custody Agreement and the
sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation by him of the transactions
contemplated herein and compliance by such Selling Shareholder with
its obligations hereunder do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Shareholder pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be
bound.
(iii) RIGHT TO TRANSFER SECURITIES. The Securities to be
sold by such Selling Shareholder pursuant to this Agreement and the
International Purchase Agreement are certificated securities in
registered form and are not held in any securities account or by or
through any securities intermediary within the meaning of the Uniform
Commercial Code as in effect in the State of New York (the "NYUCC").
Such Selling Shareholder has, and, at the Closing Time and, if any
Option Securities are purchased, on the Date of Delivery, will have,
full right, power and authority to hold, sell, transfer and deliver
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the International Purchase Agreement; and upon the
Underwriters' acquiring possession of such Securities and paying the
purchase price therefor as herein contemplated, the Underwriters will
acquire their respective interests in such Securities (including,
without limitation, all rights that such Selling Shareholder had or
has the power to transfer in such Securities) free of any "adverse
claim" assuming that each Underwriter does not have "notice" of any
"adverse claim" to such Securities (as such terms are defined in
Sections 8-102 and 8-105 of the NYUCC as currently in effect).
Certificates for all of the Option Securities to be sold by such
Selling Shareholder pursuant to this Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank, with segnatures guaranteed, have been
placed in custody with the custodian under the Irrevocable Power of
Attorney and Custody Agreement with irrevocable conditional
instructions to deliver such Option Securities to the Underwriters
pursuant to this Agreement.
(iv) DUE EXECUTION OF THE IRREVOCABLE POWER OF ATTORNEY AND
CUSTODY AGREEMENT. Such Selling Shareholder has duly executed and
delivered, in the form
12
heretofore furnished to the U.S. Representatives, the Irrevocable
Power of Attorney and Custody Agreement with Timothy O. White, Jr. and
William H. Cuddy, or either of them, as attorneys-in-fact (the
"ATTORNEYS-IN-FACT") and the Company, as custodian (the "CUSTODIAN");
the Custodian is authorized to deliver the Securities to be sold by
such Selling Shareholder hereunder and to accept payment therefor; and
each Attorney-in-Fact is authorized to execute and deliver this
Agreement and the certificate referred to in Section 5(g) or that may
be required pursuant to Sections 5(p) and 5(q) on behalf of such
Selling Shareholder, to sell, assign and transfer to the U.S.
Underwriters the Securities to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the U.S.
Underwriters to such Selling Shareholder, as provided in Section 2(b)
hereof, to authorize the delivery of the Securities to be sold by such
Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might 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 Securities.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or consent,
approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Irrevocable Power
of Attorney and Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder by such Selling Shareholder or
the consummation by such Selling Shareholders of the transactions
contemplated by this Agreement, except (i) such as may have previously
been made or obtained or as may be required under the 1933 Act or the
1933 Act Regulations or under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder,
with respect to the Common Stock, or under state securities or blue
sky laws or (except with respect to the Reserved Securities) under
foreign securities laws, (ii) such as have been already obtained under
the laws and regulations of jurisdictions outside the United States in
which the Reserved Securities are offered, (iii) which shall have been
obtained or made prior to Closing Time or, if applicable, the Time of
Delivery, and (iv) such as have been already obtained or as may be
required under the laws and regulations of jurisdiction outside the
United States in which the Securities (other than the Reserved
Securities) are offered.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 180
days from the date of the Prospectuses, such Selling Shareholder will
be subject to the restrictions set forth in Exhibit E hereto and such
Selling Shareholder agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against
the transfer of such Selling Shareholder's securities except in
compliance with such restrictions.
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or
13
assignment in blank with signatures guaranteed, have been placed in
custody with the Custodian with irrevocable conditional instructions
to deliver such Securities to the U.S. Underwriters pursuant to this
Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the U.S. Representatives or to
counsel for the U.S. Underwriters pursuant to the terms of this Agreement shall
be deemed a representation and warranty by such Selling Shareholder to the U.S.
Underwriters as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in SCHEDULE C, the
number of Initial U.S. Securities set forth in SCHEDULE A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such U.S. Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the U.S. Underwriters, severally and not
jointly, to purchase up to an additional 1,440,000 shares of Common Stock, as
set forth in SCHEDULE B, at the price per share set forth in SCHEDULE C. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company and the Selling Shareholders setting forth the number
of U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "DATE OF DELIVERY") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is
14
exercised as to all or any portion of the U.S. Option Securities, each of the
U.S. Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of U.S. Option Securities then being purchased
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Global Coordinator and the Company (such time and date of payment and delivery
being herein called "CLOSING TIME").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to a bank account designated by the
Company and the Custodian pursuant to each Selling Shareholder's Irrevocable
Power of Attorney and Custody Agreement, as the case may be, against delivery
through the facilities of The Depository Trust Company to the U.S.
Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M.
15
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
U.S. Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A, and will notify the Global Coordinator immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will effect the filings necessary
pursuant to and in compliance with Rule 424(b) and will take such steps as
it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either any prospectus included in the
Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator and counsel for the U.S. Underwriters shall reasonably
object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will, if so requested, furnish to the U.S. Representatives and counsel for
the U.S. Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will, if so requested, also furnish to the
U.S. Representatives, without charge, one conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto
16
furnished to the other U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent otherwise permitted by Regulation
S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus
as such U.S. Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each U.S. Underwriter, without charge, during
the period when the U.S. Prospectus is required to be delivered under the
1933 Act or the Securities Exchange Act of 1934 (the "1934 ACT"), such
number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters will
be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent otherwise permitted
by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
in all material respects with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the U.S. Underwriters or for the Company, to
amend the Registration Statement or amend or supplement any Prospectus in
order that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time any such Prospectus is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly, upon becoming aware of such event,
condition or circumstance, prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to
the U.S. Underwriters such number of copies of such amendment or supplement
as the U.S. Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; PROVIDED, HOWEVER,
17
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market.
(J) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities, including the Reserved Securities, to be sold hereunder
or under the International Purchase Agreement, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof and referred to
in the Prospectuses, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans
of the Company referred to in the Prospectuses or (D) any shares of Common
Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan.
18
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the rules and regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of this Agreement. The Underwriters will
notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer agent
to place a stop transfer restriction upon such securities for such period
of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
(m) COMPLIANCE WITH RULE 463. The Company will include in its periodic
reports filed with the Commission pursuant to the 1934 Act such information
as may be required pursuant to Rule 463 of the 1933 Act Regulation. SECTION
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay all
expenses incident to the performance of its and the Selling Shareholders'
obligations (except as set forth in Section 4(b)) under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectuses
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD")
19
of the terms of the sale of the Securities (x) the fees and expenses incurred in
connection with the inclusion of the Securities in the Nasdaq National Market
and (xi) all costs and expenses of the Underwriters, including reasonable fees
and disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities.
(b) EXPENSES OF THE SELLING SHAREHOLDERS. The Selling Shareholders,
jointly and severally, will pay all expenses related to (i) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the U.S. Underwriters, and their transfer between the U.S.
Underwriters pursuant to an agreement between such U.S. Underwriters, and (ii)
the fees and disbursements of their respective counsel if other than Day, Berry
& Howard LLP, and accountants if other than Arthur Andersen LLP.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the U.S. Underwriters
for all of their out-of-pocket expenses, including reasonable fees and
disbursements of counsel for the U.S. Underwriters.
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The obligations
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholders of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the U.S. Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A).
(b) OPINION OF COUNSEL FOR THE COMPANY. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Wachtell, Lipton, Rosen & Katz, counsel for the Company,
together with the favorable opinion of Timothy O. White, Jr., general
counsel of the Company, in form and substance satisfactory to counsel for
the U.S. Underwriters, together with signed or reproduced
20
copies of such letters for each of the other U.S. Underwriters, to the
effect set forth in Exhibits A and B hereto, respectively, and to such
further effect as counsel to the U.S. Underwriters may reasonably request.
(c) OPINION OF PATENT COUNSEL FOR THE COMPANY. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters, to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the U.S. Underwriters may reasonably
request.
(d) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated
as of Closing Time, of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters, to the effect set forth in Exhibit D
hereto and to such further effect as counsel to the U.S. Underwriters may
reasonably request.
(e) OPINION OF COUNSEL FOR THE U.S. UNDERWRITERS. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters with respect to the matters set forth in clauses
(i), (ii), (iii), (iv) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the
Company), (v) through (vii), inclusive, (viii), (ix) (solely as to the
information in the Prospectus under "Description of Capital Stock--Common
Stock" and "Material United States Federal Tax Considerations for Non-U.S.
Holders") and the penultimate paragraph of Exhibit A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(f) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"MATERIAL ADVERSE CHANGE"), and the U.S. Representatives shall have
received a certificate of the President or a Vice President of the Company
and of the chief financial
21
or chief accounting officer of the Company, dated as of Closing Time, to
the effect that (i) there has been no such Material Adverse Change, (ii)
the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as
of Closing Time, (iii) the Company has complied with all agreements and has
satisfied all conditions on its part to be performed or satisfied under
this Agreement at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or,
to the best of their knowledge, are contemplated by the Commission.
(g) CERTIFICATE OF SELLING SHAREHOLDERS. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect
that (i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with
the same force and effect as though expressly made at and as of Closing
Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and has satisfied all conditions on its part
to be performed or satisfied under this Agreement at or prior to Closing
Time.
(h) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from Arthur
Andersen LLP a letter dated such date, in form and substance satisfactory
to the U.S. Representatives, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectuses.
(i) BRING-DOWN COMFORT LETTER. At Closing Time, the U.S.
Representatives shall have received from Arthur Andersen LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (i) of this Section 5,
except that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(j) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(k) AMENDED CHARTER DOCUMENTS. The certificate of incorporation and
by-laws of the Company have been amended as required by the
Recapitalization, and the Recapitalization has been duly authorized and
consummated by the Company.
22
(l) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) LOCK-UP AGREEMENTS. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form
of Exhibit E hereto signed by the persons listed on Schedule D hereto.
(n) DOWNGRADE OF COMPANY'S SECURITIES. Between the date of this
Agreement and the Closing Time or any applicable Date of Delivery (if any),
there shall not have occurred any downgrading, nor shall any notice have
been given to the Company of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
or in the rating outlook for the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(o) PURCHASE OF INITIAL INTERNATIONAL SECURITIES. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities
under this Agreement, the International Managers shall have purchased the
Initial International Securities under the International Purchase
Agreement.
(p) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event
that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the
Company or on behalf of any Selling Shareholder hereunder shall be true and
correct (to the extent set forth herein) as of each Date of Delivery and,
at the relevant Date of Delivery, the U.S. Representatives shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(f) hereof remains true and correct (to the extent set forth
therein) as of such Date of Delivery.
(ii) CERTIFICATE OF SELLING SHAREHOLDERS. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(g) hereof remains true and correct
(to the extent set forth therein) as of such Date of Delivery.
23
(iii) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion
of Wachtell, Lipton, Rosen & Katz, counsel for the Company, together
with the favorable opinion of Timothy O. White, Jr., general counsel
of the Company, each in form and substance satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery, and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iv) OPINION OF PATENT COUNSEL FOR THE COMPANY. The favorable
opinion of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery, and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. The
favorable opinion of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery, and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) OPINION OF COUNSEL FOR THE U.S. UNDERWRITERS. The favorable
opinion of Shearman & Sterling, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to
be purchased on such Date of Delivery, and otherwise to the same
effect as the opinion required by Section 5(e) hereof.
(vii) BRING-DOWN COMFORT LETTER. A letter from Arthur Andersen
LLP, in form and substance satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the U.S. Representatives pursuant
to Section 5(i) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(q) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the U.S. Representatives and counsel for
the U.S. Underwriters.
24
(r) TERMINATION OF AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of U.S. Option Securities on a Date of Delivery which is after the Closing
Time, the obligations of the several U.S. Underwriters to purchase the
relevant Option Securities, may be terminated by the U.S. Representatives
by notice to the Company at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF U.S. UNDERWRITERS. The Company and the Management
Selling Shareholders who are listed as such in SCHEDULE B hereto (the
"MANAGEMENT SELLING SHAREHOLDERS") agree to jointly and severally indemnify and
hold harmless each U.S. Underwriter and each person, if any, who controls any
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act in the manner set forth in clauses (i), (ii), (iii), (iv) and
(v) of this Section 6(a); PROVIDED, HOWEVER, that none of the Management Selling
Shareholders shall be liable for the payment of an amount, pursuant to this
Section 6, which exceeds the net proceeds received by such Management Selling
Shareholder from the sale of Option Securities sold by such Management Selling
Shareholder pursuant to this Agreement. In addition, the Non-Management Selling
Shareholders who are listed as such in SCHEDULE B hereto (the "NON-MANAGEMENT
SELLING SHAREHOLDERS") agree to severally and not jointly indemnify and hold
harmless each U.S. Underwriter and each person, if any, who controls any U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act in the manner set forth in clauses (i), (ii), (iii) and (iv) of
this Section 6(a); PROVIDED, HOWEVER, that none of the Non-Management Selling
Shareholders shall be liable for the payment of an amount, pursuant to this
Section 6, which exceeds the net proceeds received by such Non-Management
Selling Shareholder from the sale of Option Securities sold by such
Non-Management Selling Shareholder pursuant to this Agreement.
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectuses or
any amendment or supplement thereto (or any prospectus wrapper) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
25
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
securities laws or regulations of foreign jurisdictions where Reserved
Securities have been offered and (B) any untrue statement or alleged untrue
statement of a material fact included in the supplement or prospectus
wrapper material distributed in foreign jurisdictions in connection with
the sale of the Reserved Securities or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders, as applicable;
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i), (ii) or (iii) above; and
(v) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any claim whatsoever based upon any claim asserted alleging violation of
preemptive rights;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information, or any preliminary prospectus or the
Prospectuses or any amendment or supplement thereto (or any prospectus wrapper)
and (b) with respect to any preliminary prospectus to the extent that any such
loss, liability, claim, damage or expense of such U.S. Underwriter results
solely from the fact that such U.S. Underwriter sold Securities to a person as
to whom the Company shall establish that there was not sent by commercially
reasonable means, at or prior to the written confirmation of such sale, a copy
of the U.S.
26
Prospectus in any case where such delivery is required by the 1933 Act, if the
Company has previously furnished copies thereof in sufficient quantity to such
U.S. Underwriter (in compliance with Section 3(d) hereof) and the loss,
liability, claim, damage or expense of such U.S. Underwriter results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus that was corrected in the U.S. Prospectus; and PROVIDED FURTHER that
the liability of each Selling Shareholder under this indemnity agreement (i)
shall apply only to losses, liability, claims, damages or expenses to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
provided by such Selling Shareholder to the Company expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information or any preliminary prospectus or the U.S.
Prospectus or any amendment or supplement thereto (for any prospectus wrapper)
and (ii) shall not exceed the net proceeds received by such Selling Shareholder.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND THE SELLING
SHAREHOLDERS. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsections (a)(i) through (iv)
(except that reference in (a)(iv) to Merrill Lynch shall be to the Company and
the Selling Shareholders, as the case may be), of this Section 6, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S. Representatives expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or
27
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement with respect to such fees and
expenses as contemplated by Section 6(a)(iii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least
30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) INDEMNIFICATION FOR RESERVED SECURITIES. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the U.S. Underwriters from
and against any and all losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of eligible employees and persons
having business relationships with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section 6 shall not affect any agreement or arrangement among the Company
and the Selling Shareholders with respect to indemnification, including without
limitation as set forth in Section 12 of the Irrevocable Power of Attorney and
Custody Agreement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the U.S. Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
28
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the U.S. Underwriters on the
other hand in connection with the statements or omissions, or in connection with
any violation of the nature referred to in Section 6(a)(ii) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the U.S. Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the Selling Shareholders
and the total underwriting discount received by the U.S. Underwriters, in each
case as set forth on the cover of the U.S. Prospectus, bear to the aggregate
initial public offering price of the U.S. Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission
or any violation of the nature referred to in Section 6(a)(ii)(A) hereof.
The Company, the Selling Shareholders and the U.S. Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
29
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or such Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint. The
Company's and the Management Selling Shareholder's respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule B hereto. The
Non-Management Selling Shareholder's respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Securities
set forth opposite their respective names in Schedule B hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Selling
Shareholders submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company or the
Selling Shareholders, and shall survive delivery of the Securities to the U.S.
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any Material Adverse Change, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of the U.S. Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the
30
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect. Notwithstanding any other provision of this Agreement to the contrary,
no Selling Shareholder shall have any liability under this Agreement, and this
Agreement shall terminate and have no force and effect with respect to the
Selling Shareholders, if no Option Securities are sold hereunder.
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, the non-defaulting
U.S. Underwriters shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the
obligation of the U.S. Underwriters to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company and the Selling Shareholders to sell
the relevant U.S. Option Securities, as the case may be, either the U.S.
Representatives or the Company and the Selling Shareholders shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectuses
31
or in any other documents or arrangements. As used herein, the term "U.S.
Underwriter" includes any person substituted for a U.S. Underwriter under this
Section.
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR THE
COMPANY.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Option Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders or the Company do not exercise the right hereby
granted to increase, pro rata or otherwise, the number of Securities to be sold
by them hereunder to the total number to be sold by all Selling Shareholders as
set forth in Schedule B hereto, then the U.S. Underwriters may, at the option of
the U.S. Representatives, by notice from the U.S. Representatives to the Company
and the non-defaulting Selling Shareholders, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section shall relieve any Selling Shareholder so defaulting from liability in
respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section, each of the U.S. Representatives, the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or the relevant Date of Delivery for a period not exceeding seven days in
order to effect any required change in the Registration Statement or
Prospectuses or in any other documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
non-defaulting party; PROVIDED, HOWEVER, that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at North Tower, World
Financial Center, New York, New York 10281, attention of Equity Capital Markets;
and notices to the Company shall be directed to it at Packard BioScience
Company, 800 Research Parkway, Meriden, Connecticut 06450, attention of Chief
Financial Officer and General Counsel; and notices to the Selling Shareholders
shall be directed to Day, Berry & Howard LLP, attention of William H. Cuddy.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the U.S. Underwriters, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters, the Company and the Selling
32
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the U.S.
Underwriters, the Company and the Selling Shareholders in accordance with its
terms.
Very truly yours,
PACKARD BIOSCIENCE COMPANY
By:
--------------------------------------
Name: Ben D. Kaplan
Title: Vice President & Chief
Financial Officer
THE SELLING SHAREHOLDERS
By:
--------------------------------------
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
ROBERT W. BAIRD & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
THOMAS WEISEL PARTNERS LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
34
SCHEDULE A
MAXIMUM
NUMBER OF
INITIAL U.S.
NAME OF U.S. UNDERWRITER SECURITIES
------------------------ ------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..................................
Chase Securities Inc. ..........................
Robert W. Baird & Co. Incorporated..............
Banc of America Securities LLC..................
Thomas Weisel Partners LLC......................
-----------
Total............................................. 9,600,000
============
Sch A-1
SCHEDULE B
MAXIMUM NUMBER MAXIMUM NUMBER
OF INITIAL U.S. OF U.S. OPTION
SECURITIES SECURITIES*
--------------- ---------------
Packard BioScience Company.............. 9,600,000 1,217,760
--------------- ---------------
Management Selling Shareholders:
Emery G. Olcott...................... 0 60,000
Richard T. McKernan 0 60,000
George Serrano 0 28,000
Non-Management Selling Shareholders:
Orren Tench 0 31,520
Staf van Cauter 0 11,760
Daniel Meert 0 10,560
Eugene Della Vecchia 0 11,520
Michael A. Zebarth 0 8,880
--------- ----------
Selling Shareholders (total) 0 222,240
--------- ----------
Total...................................... 9,600,000 1,440,000
========= =========
________________
* If the option is exercised as to less than the maximum number of U.S.
Option Securities, then the offer to sell by the Company and the Selling
Shareholders shall be that proportion of the total number of U.S. Option
Securities then being offered which the number of U.S. Option Securities
set forth above opposite the Company and each of the Selling Shareholder
bears to the total number of U.S. Option Securities offered.
Sch B-1
SCHEDULE C
PACKARD BIOSCIENCE COMPANY
9,600,000 Shares of Common Stock
(Par Value $.002 Per Share)
1. The initial public offering price per share for the Securities shall
be ___________.
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $________, being an amount equal to the
initial public offering price set forth above less $________ per share; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
Sch C-1
SCHEDULE D
List of persons and entities
subject to lock-up2
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Anderson Troy D.
------------------------------------------ -------------------------
Baird Capital Partners
II Limited Partnership
------------------------------------------ -------------------------
Baldwin Brenda J.
------------------------------------------ -------------------------
BCP II Affiliates
Fund Limited Partnership
------------------------------------------ -------------------------
Belobraydich Michael W.
------------------------------------------ -------------------------
Bernard Shelly R.
------------------------------------------ -------------------------
Bock Warren H.
------------------------------------------ -------------------------
Bosel Manfred
------------------------------------------ -------------------------
Bronson Frazier
------------------------------------------ -------------------------
Bryant W. Michael
------------------------------------------ -------------------------
Burger Paul
------------------------------------------ -------------------------
Burke Jocelyn W.
------------------------------------------ -------------------------
Burns David
------------------------------------------ -------------------------
Bursens Marc
------------------------------------------ -------------------------
Campagnuolo Benjamin
------------------------------------------ -------------------------
Carl Richard A.
------------------------------------------ -------------------------
Carter-Allen Kelly S.
------------------------------------------ -------------------------
Catalano III Michael A.
------------------------------------------ -------------------------
Catalano Jr. Michael A.
------------------------------------------ -------------------------
Chapman Jeffrey A.
------------------------------------------ -------------------------
Charland Andrea
------------------------------------------ -------------------------
Charland Michael J.
------------------------------------------ -------------------------
Chelsky Daniel
------------------------------------------ -------------------------
Christodoulou Apostolos
------------------------------------------ -------------------------
Cohen Rafael Z.
------------------------------------------ -------------------------
Colaresi James F.
------------------------------------------ -------------------------
Darken Jr Lawrence S.
------------------------------------------ -------------------------
Davidson Dorothy R.
------------------------------------------ -------------------------
Dean David M.
------------------------------------------ -------------------------
DeBaerdemaeker Luc
------------------------------------------ -------------------------
Della Vecchia Eugene
------------------------------------------ -------------------------
Duebendorfer Juerg
------------------------------------------ -------------------------
East Larry V.
------------------------------------------ -------------------------
Eichem II Charles E.
------------------------------------------ -------------------------
Elands Jack
------------------------------------------ -------------------------
Elsishans Jr. Carl J.
------------------------------------------ -------------------------
-------------
2 The lock-up by these persons and entities cover at least 85% of the
issued and outstanding shares of Common Stock of the Company, giving
effect to the exercise of outstanding options to purchase shares of
Common Stock of the Company.
Sch D-2
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
End Robert F.
------------------------------------------ -------------------------
Englert David F.
------------------------------------------ -------------------------
Fisher Edward G.
------------------------------------------ -------------------------
Fleissner John G.
------------------------------------------ -------------------------
Frei Hans Rudolph
------------------------------------------ -------------------------
Fulbright Richard S.
------------------------------------------ -------------------------
Gallagher Brian
------------------------------------------ -------------------------
Hall David L.
------------------------------------------ -------------------------
Hall Nance
------------------------------------------ -------------------------
Harazin Richard R.
------------------------------------------ -------------------------
Heinze Karl R.
------------------------------------------ -------------------------
Hering Paul
------------------------------------------ -------------------------
Hill Donald W.
------------------------------------------ -------------------------
Hinshaw Steve M.
------------------------------------------ -------------------------
Hoecker Bradley J.
------------------------------------------ -------------------------
Houchins Brandon A.
------------------------------------------ -------------------------
Huckins Robert J.
------------------------------------------ -------------------------
Hurst Mark E.
------------------------------------------ -------------------------
Jones Donald K.
------------------------------------------ -------------------------
Kadner Steven P.
------------------------------------------ -------------------------
Kaplan Ben D.
------------------------------------------ -------------------------
Koskelo Markku
------------------------------------------ -------------------------
Krug Robert E.
------------------------------------------ -------------------------
Kuhn Roberta
------------------------------------------ -------------------------
Kuwashima Susumu
------------------------------------------ -------------------------
Laforge Michael A.
------------------------------------------ -------------------------
Laskos Steven C.
------------------------------------------ -------------------------
Le Saec Marcel
------------------------------------------ -------------------------
Lee Darren M.
------------------------------------------ -------------------------
Li Mary
------------------------------------------ -------------------------
Little Tony
------------------------------------------ -------------------------
Magny France
------------------------------------------ -------------------------
McElroy Robert D.
------------------------------------------ -------------------------
Sch D-3
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
McKernan Brendan
------------------------------------------ -------------------------
McKernan Kevin
------------------------------------------ -------------------------
McKernan Melissa
------------------------------------------ -------------------------
McKernan Patricia G.
------------------------------------------ -------------------------
McKernan Richard B.
------------------------------------------ -------------------------
McKernan Richard T.
------------------------------------------ -------------------------
McKernan Virginia
------------------------------------------ -------------------------
McKernan Family Trust
------------------------------------------ -------------------------
Meert Daniel
------------------------------------------ -------------------------
Menard Luc
------------------------------------------ -------------------------
Meredith David R.
------------------------------------------ -------------------------
Merrill Lynch KECALP Int'l
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1994
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1997
------------------------------------------ -------------------------
Michas Alexis
------------------------------------------ -------------------------
Montgomery George G.
------------------------------------------ -------------------------
Morrison Douglas A.
------------------------------------------ -------------------------
Murray James
------------------------------------------ -------------------------
Mylymuk Michale J.
------------------------------------------ -------------------------
Nacht Arthur F.
------------------------------------------ -------------------------
Olcott Barbara
------------------------------------------ -------------------------
Olcott Charles W.
------------------------------------------ -------------------------
Olcott Emery G.
------------------------------------------ -------------------------
Olcott Timothy S.
------------------------------------------ -------------------------
Olcott Jr. Emery G.
------------------------------------------ -------------------------
Papen Roeland
------------------------------------------ -------------------------
Pearce Gibson
------------------------------------------ -------------------------
Plested Graham
------------------------------------------ -------------------------
Proulx Robert
------------------------------------------ -------------------------
Pyle William D.
------------------------------------------ -------------------------
Richardson Wayne G.
------------------------------------------ -------------------------
Rieveschl David C.
------------------------------------------ -------------------------
Rossi Ferdinando
------------------------------------------ -------------------------
Rotando Lynn
------------------------------------------ -------------------------
Sch D-4
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Salisbury Robert C.
------------------------------------------ -------------------------
Schaich Steven R.
------------------------------------------ -------------------------
Schmeizl Mark A.
------------------------------------------ -------------------------
Seabourne William J.
------------------------------------------ -------------------------
Seely Jr Ernest C.
------------------------------------------ -------------------------
Serralunga Michel
------------------------------------------ -------------------------
Serrano George
------------------------------------------ -------------------------
Shepard Randy L.
------------------------------------------ -------------------------
Sielaff Willard A.
------------------------------------------ -------------------------
Smalling John P.
------------------------------------------ -------------------------
Smith David H.
------------------------------------------ -------------------------
SOWA Trading Co. Inc.
------------------------------------------ -------------------------
Spallone Martin C.
------------------------------------------ -------------------------
Special Patrick E.
------------------------------------------ -------------------------
Stangl Rainer
------------------------------------------ -------------------------
Stevenson Chase
------------------------------------------ -------------------------
Stone Richard A.
------------------------------------------ -------------------------
Stonington Capital Appreciation 1994 Fund
------------------------------------------ -------------------------
Swanson Drew E.
------------------------------------------ -------------------------
Tamburro John G.
------------------------------------------ -------------------------
Tench Orren K.
------------------------------------------ -------------------------
Tong Peter P.
------------------------------------------ -------------------------
Toritzin Oleg
------------------------------------------ -------------------------
Toyo Corporation
------------------------------------------ -------------------------
Upham Loraine E.
------------------------------------------ -------------------------
Van Cauter Staf C.
------------------------------------------ -------------------------
Vermilye Ronald M.
------------------------------------------ -------------------------
Verplancke Jan
------------------------------------------ -------------------------
Villani Marcel F.
------------------------------------------ -------------------------
Wang Changjin
------------------------------------------ -------------------------
Webb Robert G.
------------------------------------------ -------------------------
West Leon
------------------------------------------ -------------------------
Wherlock Charles Michael
------------------------------------------ -------------------------
White Robert M.
------------------------------------------ -------------------------
White Sally Ann
------------------------------------------ -------------------------
White Jr. Timothy O.
------------------------------------------ -------------------------
Sch D-5
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
White Sr. Timothy O.
------------------------------------------ -------------------------
White, TRUST Melissa
------------------------------------------ -------------------------
White, TRUST Timothy O.
------------------------------------------ -------------------------
Woodard Robert C.
------------------------------------------ -------------------------
Yocum Kenneth M.
------------------------------------------ -------------------------
Young Brian M.
------------------------------------------ -------------------------
Young Harry M.
------------------------------------------ -------------------------
Zebarth Michael A.
------------------------------------------ -------------------------
Ziegler Michael R.
------------------------------------------ -------------------------
Zukosky Patrick A.
------------------------------------------ -------------------------
Sch D-6
EXHIBIT A
FORM OF OPINION OF WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
will be subject to personal liability by reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive or,
to the knowledge of such counsel, other similar rights, of any securityholder of
the Company.
(v) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectuses pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of their
respective effective or issue dates (except, in each case, for the financial
statements, related notes and schedules and other financial data included
therein or omitted therefrom, as to which we express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
A-1
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company.
(ix) The information in the Prospectuses under "Related Party
Transactions-Stockholders' Agreement," "Description of Capital Stock-Common
Stock", and "Material United States Federal Tax Considerations for Non-U.S.
Holders", to the extent that it purports to summarize legal matters or the
Company's charter and by-laws fairly summarizes the legal matters described
therein in all material respects.
(x) The Recapitalization has been duly authorized and validly
consummated by the Company.
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," within the meaning of the 1940 Act and
the rules and regulations of the Commission thereunder.
With respect to the matters covered in paragraph (vii) above, our
opinion is based on participation in the preparation of the Registration
Statement and Prospectuses and any amendment or supplement thereto, and in
discussions with officers and other representatives of the Company and its
independent public accountants (including discussions in which representatives
of the Underwriters and their counsel participated) but is without independent
check or verification. We have participated in the preparation of the
Registration Statement and Prospectuses and in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company and with representatives of the Underwriters and
their counsel at which the contents of the Registration Statement, the
Prospectuses and related matters were discussed. In connection with the opinions
expressed herein and the participation referenced above, we have not verified
and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses (other than as set forth in paragraph (ix) above).
We confirm, however, that in the course of such participation, review and
discussions, no facts have come to our attention to lead us to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for the financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which we express no opinion), at the time the Registration Statement or any such
amendment became effective, 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 (B) that the Prospectuses or any
amendment or supplement thereto (except for the financial statements and related
notes and schedule, and other financial data included therein or omitted
therefrom, as to which we express no opinion), at the time the Prospectuses were
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or include an untrue statement or a material fact or
omitted or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-2
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
EXHIBIT B
FORM OF OPINION OF TIMOTHY O. WHITE
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing could not reasonably be expected to result in a Material
Adverse Effect.
(iv) The Company had at the date indicated a duly authorized, issued and
outstanding capitalization as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" and notes thereto; the
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other similar
rights of any securityholder of the Company; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company with the exception of the
issuance by the Company of an aggregate of 26,500 authorized but unissued shares
of Common Stock (the "Issued Shares") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock in the
aggregate), in March 1987, March 1988 and March 1989 (collectively, the "Stock
Issuances"); with respect to the Issued Shares, to the Company's knowledge, the
holders of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of such Common
Stock outstanding immediately prior to the Stock Issuances have, at any time
since, threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to bring,
any claim at law or in equity challenging the Stock Issuances; and to my actual
knowledge, none of the Option Securities was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively,
B-1
and, when issued and delivered by the Company pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, respectively, against
payment of the consideration set forth in the U.S. Purchase Agreement and the
International Purchase Agreement, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the preemptive
rights of any securityholder of the Company or other similar rights pursuant to
agreements or instruments to which the Company is a party.
(vii) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing could not
reasonably be expected to result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement (including with respect to the
Credit Agreement), all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of (a) Packard Instrument Company or CCS Packard, Inc.
was issued in violation of the preemptive rights of any securityholder of such
Subsidiary or other similar rights pursuant to agreements or instruments to
which such Subsidiary is a party and (b) any Subsidiary (other than Packard
Instrument Company and CCS Packard, Inc.) was issued, after such entity became a
Subsidiary of the Company, in violation of the preemptive rights of any
securityholder of such Subsidiary or other similar rights pursuant to agreements
or instruments to which such Subsidiary is a party.
(viii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ix) To the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(x) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements and with any
applicable requirements of the charter and by-laws of the Company.
(xi) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), which (a) could reasonably be
expected to result in a Material Adverse Effect, or (b) could reasonably be
expected to materially and adversely affect the value of the properties or
assets of the Company, in the aggregate, or the
B-2
consummation of the transactions contemplated in the U.S. Purchase Agreement and
International Purchase Agreement or the performance by the Company of its
obligations thereunder.
(xii) The information in the Prospectuses under "Related Party
Transactions," "Description of Capital Stock", "Description of Indebtedness,"
"Business--Properties","Business--Legal Proceedings", "Risk Factors-Changes in
environmental regulations could increase the costs of manufacturing our products
or providing our services, or otherwise adversely affect the demand for our
products or services," "Business-Environmental Matters", and "Business-
Regulation" and in the Registration Statement under Items 14 and 15, to the
extent that it purports to summarize legal matters, the Company's charter and
by-laws or legal proceedings fairly summarizes the legal matters described
therein.
(xiii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are not
described as required.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required pursuant to the 1933 Act to be described or referred to in
the Prospectuses or filed as exhibits to the Registration Statement, which have
not been so described or filed.
(xv) To the best of my knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xvi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase Agreement
or the consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder, with respect to the Common Stock or under foreign
or state securities or blue sky laws, (ii) such as have been already obtained or
as may be required under the laws and regulations of jurisdictions outside the
United States in which the Securities and the Reserved Securities are offered
and (iii) which shall have been obtained or made prior to the Closing Time or,
if applicable, the Time of Delivery.
(xvii) The execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase Agreement and in the
Registration Statement (with respect to the
B-3
issuance and sale of the Securities and the use of the proceeds from the sale
of the Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under this
Agreement and the International Purchase Agreement have been duly authorized
by all necessary corporate action, including (if required) board approval,
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to, any contract indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them is bound (collectively, "the AGREEMENT AND
INSTRUMENTS") (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that could not reasonably be
expected to result in a Material Adverse Effect), nor will such action result
in any violation of (A) the provisions of the charter or by-laws of the
Company or any Subsidiary, (B) any existing applicable domestic law, statute,
rule, regulation, judgment, order, writ or decree of any domestic government,
government instrumentality or court having jurisdiction over the Company or
any Subsidiary or any of their assets, properties or operations, except, in
the case of (B), for such violations that could not reasonably be expected to
result in a Material Adverse Effect or (C) to the best of my knowledge, any
existing applicable foreign law, statute, rule, regulation, judgment, order,
writ or decree of any foreign government, government instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of their assets
properties or operations except for such violations that could not reasonably
be expected to result in a Material Adverse Effect.
(xviii) To the best of my knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement.
(xix) The Recapitalization has been duly authorized and validly
consummated by the Company.
Nothing has come to my attention that would lead me to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which I express no opinion), at the time such Registration Statement or any such
amendment became effective, 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 (B) that the Prospectuses or any
amendment or supplement thereto (except for financial statements, related notes
and schedule, and other financial data included therein or omitted therefrom, as
to which I express no opinion), at the time the Prospectuses were issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
B-4
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials
(including with respect to the Stock Issuances) and, in the case of the opinion
set forth in clause (iv), on the books and records of the Company. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-5
EXHIBIT C
FORM OF OPINION OF JENKENS & GILCHRIST
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The statements and descriptions made in the Prospectuses under the
captions "Risk Factors-If we are unable to effectively protect our intellectual
property, we may be unable to prevent third parties from using our technology,
which could impair our ability to compete effectively in the market," "Risk
Factors-Our products could infringe on the intellectual property rights of
others, causing costly litigation and seriously harming our business" and
"Business-Intellectual Property" to the extent that they constitute matters of
law or legal conclusions, have been reviewed by us and fairly present the
information disclosed therein in all material respects and nothing has come to
our attention which leads us to believe that (A) the information set forth in
the Registration Statement, or any amendment thereto, under the captions
referred to above as of the time the Registration Statement became effective
under the Securities Act, and as of the Closing Time or any Delivery Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the information set forth in the Prospectuses, or in any
supplement thereto, under the captions referred to above as of their issue dates
and as of such Closing Time or any Delivery Date, 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.
(ii) Such counsel has no knowledge of any pending or threatened legal or
governmental proceeding relating to patents or proprietary know-how owned or
used by the Company or any of its subsidiaries, to which the Company or any of
its subsidiaries is a party except as disclosed in the Registration Statement,
which, if adversely decided, would have a material adverse effect on the
business, financial condition or results of operations of the Company or any of
its subsidiaries, taken as a whole.
(iii) Such counsel has no knowledge of any infringement or alleged
infringement by the Company or any of its subsidiaries of issued patent rights
of others, except as disclosed in the Registration Statement, which would have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
C-1
EXHIBIT D
FORM OF OPINION OF DAY, BERRY & HOWARD LLP
TO BE DELIVERED PURSUANT TO SECTION 5(e)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state or foreign
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by each
Selling Shareholder of its obligations under the U.S. Purchase Agreement and
International Purchase Agreement or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the offer, sale or delivery of the
Option Securities to be sold by the Selling Shareholders.
(ii) Each Irrevocable Power of Attorney and Custody Agreement has been
duly executed and delivered by the respective Selling Shareholder named therein
and constitutes the legal, valid and binding agreement of such Selling
Shareholder.
(iii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Option Securities to be sold by the Selling
Shareholders on behalf of the Selling Shareholders in accordance with the terms
of the U.S. Purchase Agreement and the International Purchase Agreement.
(v) The execution, delivery and performance by the Selling
Shareholders of the U.S. Purchase Agreement, the International Purchase
Agreement, the Irrevocable Power of Attorney and Custody Agreement and the sale
and delivery by the Selling Shareholders of the Option Securities to be sold by
the Selling Shareholders and the consummation of the transactions by the Selling
Shareholders contemplated in the U.S. Purchase Agreement, in the International
Purchase Agreement, and in the Registration Statement and compliance by the
Selling Shareholders with their obligations under the U.S. Purchase Agreement
and International Purchase Agreement have been duly authorized by all necessary
action on the part of the Selling Shareholders and (A) do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the Option
Securities to be sold by the Selling Shareholders or any property or assets of
the Selling Shareholders pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which any Selling Shareholder is a party or by which it may be
bound, or to which any of the property or assets of any Selling Shareholder may
be subject, nor (B) will such action result in any violation of any law,
administrative regulation, judgment or order of any governmental agency or body
or any administrative or court decree having jurisdiction over such Selling
D-1
Shareholder or any of its properties.
(vi) Each Selling Shareholder has full right, power and authority to sell,
transfer and deliver such Option Securities pursuant to the Purchase Agreements.
Assuming that (i) the certificate or certificates representing the Option
Securities to be held by such Selling Shareholder pursuant to the Purchase
Agreements have been effectively indorsed in blank in accordance with NYUCC
Article 8 and (ii) the Underwriters are without notice of any adverse claim to
the Option Securities, then, upon the Underwriters' acquiring possession of such
certificate or certificates for the Option Securities and paying the purchase
price therefor pursuant to the Purchase Agreements, each Underwriter will be a
"protected purchaser" of the Option Securities to be purchased by it (within the
meaning of Section 8-303 of the NYUCC) and will acquire its interest in such
Option Securities (including, without limitation, all rights that such Selling
Shareholder had or has the power to transfer in such Secutities) free of any
adverse claim.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper on
certificates of the Selling Shareholders and of responsible officers of the
Company and public officials. Such counsel may also rely on opinions of other
counsel, to the extent they deem proper, as to matters governed by the laws of a
jurisdiction in which such counsel are not admitted to practice law.
D-2
Exhibit E
April , 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
MERRILL LYNCH INTERNATIONAL
Chase Manhattan International Limited
Robert W. Baird & Co. Incorporated
Bank of America International Limited
Thomas Weisel International Limited
as Lead Manager of the several International Managers
to be named in the within-mentioned International Purchase Agreement
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Re: Proposed Public Offering by Packard BioScience Company
------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Packard BioScience Company, a Delaware corporation (the "COMPANY"), understands
that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MERRILL LYNCH") and Chase Securities Inc., Robert W. Baird & Co. Incorporated,
Banc of America Securities LLC, and Thomas Weisel Partners LLC (the "U.S.
UNDERWRITERS") propose to enter into a U.S. Purchase Agreement (the "U.S.
PURCHASE AGREEMENT") with the Company and the persons listed in Schedule B to
the U.S.
E-1
Purchase Agreement (the "SELLING SHAREHOLDERS") providing for the public
offering of shares (the "SECURITIES") of the Company's common stock, par value
$.002 per share (the "COMMON STOCK"). The undersigned also understands that the
Company and the Selling Shareholders propose to concurrently enter into an
agreement with certain international underwriters (the "INTERNATIONAL MANAGERS"
and, together with the U.S. Underwriters, the "UNDERWRITERS") for the offering
of the Common Stock outside the United States and Canada (the "INTERNATIONAL
PURCHASE AGREEMENT" and, together with the U.S. Purchase Agreement, the
"PURCHASE AGREEMENTS"). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder [and an officer and/or director] of
the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the next paragraph
of this agreement, the undersigned agrees with each of the Underwriters that,
during a period of 180 days from the date of the Purchase Agreements, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
The foregoing paragraph shall not apply to (A) Securities (i)
transferred as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth in this
agreement, (ii) transferred to any trust for the direct or indirect benefit of
any stockholder or the immediate family of such stockholder, provided that the
trustee of trust agrees to be bound in writing by the restrictions set forth
herein, and provided further that any such transfer shall not involve a
disposition for value, (iii) sold by the stockholder but only if and to the
extent that such Securities have been acquired by such stockholder (x) pursuant
to the Purchase Agreements or (y) in the open market after completion of the
offering of the Securities by the Underwriters, or (iv) if the transfer of such
Securities occurs by operation of law, such as rules of intestate succession or
statutes governing the effects of a merger, provided that the transferee
executes an agreement stating that the transferee is receiving and holding the
shares subject to the provisions of this agreement, and (B) any sales of any
Securities to the Underwriters pursuant to the Purchase Agreements. For purposes
of this paragraph "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
Very truly yours,
Signature: __________________________
Print Name: _________________________
E-2
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT........................................................1
SECTION 1. Representations and Warranties.................................4
(a) Representations and Warranties by the Company..................4
(i) Compliance with Registration Requirements............4
(ii) Independent Accountants..............................5
(iii) Financial Statements.................................5
(iv) No Material Adverse Change in Business...............5
(v) Good Standing of the Company.........................6
(vi) Good Standing of Subsidiaries........................6
(vii) Capitalization.......................................6
(viii) Authorization of Agreement...........................7
(ix) Authorization and Description of Securities..........7
(x) Absence of Defaults and Conflicts....................7
(xi) Absence of Labor Dispute.............................8
(xii) Absence of Proceedings...............................8
(xiii) Accuracy of Exhibits.................................8
(xiv) Possession of Intellectual Property..................9
(xv) Absence of Further Requirements......................9
(xvi) Possession of Licenses and Permits...................9
(xvii) Title to Property...................................10
(xviii) Investment Company Act..............................10
(xix) Environmental Laws..................................10
(xx) Registration Rights.................................11
(xxi) Year 2000 Problem...................................11
(xxii) Insurance...........................................11
(xxiii) Relationships with Directors and Stockholders.......11
(xxiv) Compliance with Cuba Act............................11
(b) Representations and Warranties by the Selling Shareholders....11
(i) Accurate Disclosure.................................11
(ii) Authorization of Agreements.........................12
(iii) Good and Marketable Title...........................12
(iv) Due Execution of Irrevocable Power of Attorney and
Custody Agreement...................................12
(v) Absence of Manipulation.............................13
(vi) Absence of Further Requirements.....................13
(vii) Restriction on Sale of Securities...................13
(viii) Certificates Suitable for Transfer..................13
(ix) No Association with NASD............................14
(c) Officer's Certificates........................................14
i
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing...............14
(a) Initial Securities............................................14
(b) Option Securities.............................................14
(c) Payment.......................................................15
(d) Denominations; Registration...................................15
SECTION 3. Covenants of the Company......................................16
(a) Compliance with Securities Regulations and Commission
Requests......................................................16
(b) Filing of Amendments..........................................16
(c) Delivery of Registration Statements...........................16
(d) Delivery of Prospectuses......................................17
(e) Continued Compliance with Securities Laws.....................17
(f) Blue Sky Qualifications.......................................17
(g) Rule 158......................................................18
(h) Use of Proceeds...............................................18
(i) Listing.......................................................18
(j) Restriction on Sale of Securities.............................18
(k) Reporting Requirements........................................18
(l) Compliance with NASD Rules....................................19
(m) Compliance with Rule 463......................................19
SECTION 4. Payment of Expenses...........................................19
(a) Expenses......................................................19
(b) Expenses of the Selling Shareholders..........................20
(c) Termination of Agreement......................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations..................20
(a) Effectiveness of Registration Statement.......................20
(b) Opinion of Counsel for Company................................20
(c) Opinion of Patent Counsel for Company.........................21
(d) Opinion of Counsel for Selling Shareholders...................21
(e) Opinion of Counsel for U.S. Underwriters......................21
(f) Officers' Certificate.........................................21
(g) Certificate of Selling Shareholders...........................22
(h) Accountants' Comfort Letter...................................22
(i) Bring-down Comfort Letter.....................................22
(j) Approval of Listing...........................................22
(k) Amended Charter Documents.....................................22
(l) No Objection..................................................22
(m) Lock-up Agreements............................................23
(n) Downgrade of Company's Securities.............................23
(o) Purchase of Initial International Securities..................23
(p) Conditions to Purchase of U.S. Option Securities..............23
(q) Additional Documents..........................................24
(r) Termination of Agreement......................................24
ii
SECTION 6. Indemnification...............................................25
(a) Indemnification of U.S. Underwriters..........................25
(b) Indemnification of Company, Directors, Officers and Selling
Shareholders..................................................27
(c) Actions Against Parties; Notification.........................27
(d) Settlement Without Consent if Failure to Reimburse............28
(e) Indemnification for Reserved Securities.......................28
(f) Other Agreements with Respect to Indemnification..............28
SECTION 7. Contribution..................................................28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery......................................................30
SECTION 9. Termination of Agreement......................................30
(a) Termination; General..........................................30
(b) Liabilities...................................................30
SECTION 10.Default by One or More of the U.S. Underwriters...............31
SECTION 11.Default by One or More of the Selling Shareholders or
the Company...................................................31
SECTION 12.Notices.......................................................32
SECTION 13.Parties.......................................................32
SECTION 14.GOVERNING LAW AND TIME........................................33
SECTION 15.Effect of Headings............................................33
SCHEDULES
Schedule A - List of U.S. Underwriters..............................Sch A-1
Schedule B - List of Selling Shareholders...........................Sch B-1
Schedule C - Pricing Information....................................Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up........Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........................A-1
Exhibit B - Form of Opinion of Timothy O. White.........................B-1
Exhibit C - Form of Opinion of Patent Counsel for the Company...........C-1
Exhibit D - Form of Opinion of Selling Shareholders' Counsel........... D-1
Exhibit E - Form of Lock-up Letter..................................... E-1
iii