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EXHIBIT 1.1
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EXECUTION COPY
MESSER GRIESHEIM HOLDING AG
E550,000,000 10.375% SENIOR NOTES DUE 2011
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PURCHASE AGREEMENT
May 11, 2001
Goldman Sachs International
as representative (the "REPRESENTATIVE")
of the several Purchasers named in Schedule I hereto,
c/o Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
Ladies and Gentlemen:
Messer Griesheim Holding AG, an AKTIENGESELLSCHAFT incorporated under
the laws of the Federal Republic of Germany (the "COMPANY"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Purchasers
named in Schedule I hereto (the "PURCHASERS") an aggregate of E550,000,000
principal amount of the Senior Notes of the Company specified above (together
the "SECURITIES").
The holders of the Securities will be entitled to the benefits of a
registration rights agreement (the "REGISTRATION RIGHTS AGREEMENT") to be dated
as of the date of the issuance of the Securities between the Company and the
Purchasers pursuant to which the Company will agree, among other things, to use
its best efforts to file (i) a registration statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") with the U.S. Securities and Exchange Commission (the
"COMMISSION") relating to an offer to exchange any and all Securities (the
"EXCHANGE OFFER") for a like aggregate principal amount of debt securities
issued by the Company, which debt securities are substantially identical to the
Securities except that they have been registered with the Commission (the
"EXCHANGE SECURITIES") under the U.S. Securities Act of 1933, as amended (the
"ACT") and (ii) a shelf registration statement pursuant to Rule 415 of the Act
(the "SHELF REGISTRATION STATEMENT" and together with the Exchange Offer
Registration Statement, the "REGISTRATION STATEMENTS") relating to the resale of
the Securities by certain holders of such Securities and to use its best efforts
to cause such Registrations Statements to be declared and remain effective and
usable for the period specified in the Registration Rights Agreement and to
consummate the Exchange Offer.
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The Company understands that the Purchasers propose to make an offer to
resell the Securities on the terms and in the manner set forth herein and agree
that the Purchasers may resell, subject to the conditions and selling
restrictions set forth herein, all or a portion of the Securities to subsequent
purchasers at any time after the date of this Agreement. The Securities are to
be offered and sold through the Purchasers without being registered under the
Act, in reliance upon exemptions therefrom. Investors that acquire Securities
may only resell or otherwise transfer such Securities if such Securities are
hereafter registered under the Act or if an exemption from the registration
requirements of the Act is available (including the exemption afforded by Rule
144A ("RULE 144A") or Regulation S ("REGULATION S") of the rules and regulations
promulgated under the Act by the Commission.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Offering Circular (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference in the Offering Circular.
For purposes of this Agreement:
"MATERIAL SUBSIDIARY" means any subsidiary of the Company that would be
a "significant subsidiary" of the Company as defined in Article 1, Rule
1-03 of Regulation S-X under the Act, as such rule is in effect on the
date hereof, but replacing in such definition the 10% test threshold
with a 3% test threshold; provided, however, that for all purposes of
this Agreement each of Messer Griesheim GmbH and Messer Griesheim
Industries, Inc. shall be deemed to be a "Significant Subsidiary"; and
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
current or future financial position, business prospects, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole.
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that as of the date hereof and at the Time of Delivery (as defined
below):
(a) A preliminary offering circular, dated April 30, 2001 (the
"PRELIMINARY OFFERING CIRCULAR") and an offering circular, dated May
11, 2001 (the "OFFERING CIRCULAR"), have been prepared in connection
with the offering of the Securities. Any reference in this Agreement to
the Preliminary Offering Circular or the Offering Circular shall be
deemed to refer to and include any Additional Issuer Information (as
defined in Section 5(f) of this Agreement) furnished by the Company
prior to the completion of the distribution of the Securities. The
Preliminary Offering Circular or the Offering Circular and any
amendments or supplements thereto and any document filed with the
Commission did not and will not, as of their respective dates, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by a Purchaser through the Representative expressly for
use therein;
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(b) Neither the Company nor any of its Material Subsidiaries
has sustained since the date of the latest audited financial statements
included in the Offering Circular any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental or quasi-governmental action, order or decree,
otherwise than as set forth in the Offering Circular; and, since the
respective dates as of which information is given in the Offering
Circular, there has not been any change in the capital stock or
long-term debt of the Company or any of its Material Subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth in the Offering Circular;
(c) The Company and its Material Subsidiaries have good and
marketable title to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Offering Circular or as would not have a Material Adverse Effect; and
any real property and buildings held under lease by the Company and its
Material Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to the
Company and its subsidiaries taken as a whole;
(d) The Company has been duly incorporated and is validly
existing as a stock corporation (AKTIENGESELLSCHAFT) under the laws of
the Federal Republic of Germany ("GERMANY"), with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Circular, and the Company is not required to
qualify as a foreign corporation in any jurisdiction for the
transaction of business; and each Material Subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (except in respect to the Company's interest in the
Bombay Oxygen Corporation Ltd., if any; and except in respect of any
such lien encumbrances, equities or claims created pursuant to or in
connection with the Senior Multicurrency Term and Revolving Facilities
Agreement dated April 28, 2001, among, INTER ALIA, Cornelia
Verwaltungsgesellschaft mbH and Goldman Sachs International); and there
are no restrictions on subsequent transfers of the Securities under the
laws of Germany and of the United States of America (the "UNITED
STATES") other than the conditions and selling restrictions set forth
in this Agreement;
(f) The Company has all requisite corporate power and
authority to enter into this Agreement, and this Agreement has been
duly and validly authorized, executed and delivered;
(g) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered
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and will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the indenture to be dated
as of May 16, 2001 (the "INDENTURE") between the Company and The Bank
of New York, as Trustee (the "TRUSTEE") subject, as to enforcement, to
(i) bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and (ii)
general equity principles (whether enforcement is sought in a
proceeding in equity or at law).
(h) The Exchange Securities to be offered and exchanged for
the Securities pursuant to the Registration Rights Agreement, have been
duly authorized and, when issued and delivered pursuant to the
Registration Rights Agreement, will constitute the valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture under which they are to be issued, which will be
substantially in the form previously delivered to you, subject, as to
enforcement, to (i) bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and (ii) general equity principles (whether enforcement is
sought in a proceeding in equity or at law);
(i) The Indenture has been duly authorized and, when executed
and delivered by the Company and the Trustee, the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and (ii) to general equity
principles (whether enforcement is sought in a proceeding at equity or
at law);
(j) The Registration Rights Agreement has been duly authorized
and, when executed by the Company in accordance with the terms thereof,
will be validly executed and delivered and (assuming the due
authorization, execution and delivery thereof by you) will constitute a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject, as to enforcement, (i) to
bankruptcy, insolvency, reorganization, and other laws of general
applicability relating to or affecting creditors' rights and (ii) to
general equity principles (whether enforcement is sought in a
proceeding in equity or at law);
(k) The Assignment Agreement between the Company and the
Trustee, to be dated the date of the initial issuance of the Securities
(the "ASSIGNMENT AGREEMENT"), when executed and delivered, will
constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject, as to enforcement,
(i) to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and
(ii) to general equity principles (whether enforcement is sought in a
proceeding in equity or at law); and the Assignment Agreement creates a
valid, first ranking security right (SICHERUNGSABTRETUNG) in the
Receivables (as defined in the Assignment Agreement) in favor of the
Trustee;
(l) Each of the High Yield Proceed Loan Agreement between the
Company and Messer Griesheim GmbH, to be dated the date of the initial
issuance of the Securities (the "HIGH YIELD PROCEEDS LOAN AGREEMENT"),
and the High Yield Subordination Agreement between the Company and
Messer Griesheim GmbH, to be dated the date of the initial issuance of
the Securities (the "HIGH YIELD SUBORDINATION AGREEMENT and, together
with the High Yield Proceeds Loan Agreement, the "HIGH YIELD STRUCTURE
DOCUMENTS"), when executed and delivered, will constitute a valid and
legally binding obligation of each of the
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Company and Messer Griesheim GmbH, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights and (ii) to general equity principles
(whether enforcement is sought in a proceeding in equity or at law)
(m) The Securities, Exchange Securities, Indenture and
Registration Rights Agreement will conform to the descriptions thereof
in the Offering Circular and will be in substantially the form
previously delivered to you;
(n) reserved
(o) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the United States Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), or any regulation promulgated thereunder, including,
without limitation, Regulations T, U and X of the Board of Governors
of the Federal Reserve System of the United States;
(p) There is no "substantial U.S. market interest" in the
Company's debt securities within the meaning of Rule 903(b)(1) under
the Act;
(q) The issue and sale of the Securities and the Exchange
Securities and the compliance by the Company with all of the provisions
of the Securities, the Exchange Securities, the Indenture, the
Registration Rights Agreement, this Agreement, the Assignment Agreement
and each of the High Yield Structure Documents; the execution, delivery
and performance of, and the admissibility into evidence of, the
Securities, the Exchange Securities, the Indenture, the Registration
Rights Agreement, this Agreement, the Assignment Agreement and the each
of the High Yield Structure Documents by the Company and the
consummation of the transactions herein and therein contemplated will
not: (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, (ii) result in any violation of the provisions of the
articles of incorporation (SATZUNG) and by laws or other organizational
documents of the Company, (iii) result in any violation of any statute
or any order, rule or regulation of any court, central bank, stock
exchange or governmental or quasi-governmental agency, body or
authority ("GOVERNMENTAL AGENCY") having jurisdiction over the Company
or any of its subsidiaries or any of their properties; (iv) result in
the imposition or creation of (or the obligation to create or impose) a
lien under any agreement or instrument (other than pursuant to the
terms of the Indenture) to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound (except for such liens which would not,
singly or in the aggregate, result in a Material Adverse Effect; (v)
result in the suspension, termination or revocation of any governmental
or quasi-governmental authorization, license, ruling or exemption
("GOVERNMENTAL AUTHORIZATION") of or with any Governmental Agency held
or previously obtained by the Company or any of its subsidiaries; or
(vi) require any Governmental Authorizations, except such Governmental
Authorizations as may be required under state securities or Blue Sky
laws in connection with the purchase and
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distribution of the Securities by the Purchasers, and except, in the
case of the Exchange Securities, for the filing of a registration
statement by the Company with the Commission pursuant to the Act and
pursuant to the Registration Rights Agreement and the qualification of
the indenture under the United States Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT");
(r) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation, by laws or other
organizational documents or in default in the performance or observance
of any obligation, covenant or condition contained in any indenture,
mortgage, charge, deed of trust, loan agreement, guarantee, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except as would not have a Material
Adverse Effect;
(s) The statements set forth in the Offering Circular under
the caption "Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities and the Indenture,
under the captions "Description of Messer Griesheim's Senior
Indebtedness", "Certain Tax Consequences", "Exchange Offer and
Registration Rights", "Certain Relationships and Related Party
Transactions" and "Plan of Distribution", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(t) Other than as set forth in the Offering Circular, there
are no legal or governmental or quasi-governmental proceedings, actions
or investigations pending to which (A) the Company or any of its
Material Subsidiaries or (B) any property of the Company or any of its
subsidiaries or (C), to the knowledge of the Company, after due
inquiry, any present or former officer, director or agent of the
Company or any of its subsidiaries is party or subject which, if
determined adversely to the Company or any of its subsidiaries or such
officer or director, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company's knowledge,
no such proceedings are threatened by any Governmental Agencies or
threatened by others;
(u) No Governmental Authorization is required to effect
payments of principal, premium, if any, and interest (including,
without limitation, special interest and additional amounts in respect
of taxes) on the Securities;
(v) All interest on the Securities and the Exchange Securities
may under the current laws and regulations of Germany be paid in euro
that may be converted into foreign currency that may be freely
transferred out of Germany, and except as disclosed in the Offering
Circular, all such interest and other distributions on the Securities
will not be subject to withholding or other taxes under the laws and
regulations of Germany and are otherwise free and clear of any other
tax, withholding or deduction in Germany and without the necessity of
obtaining any Governmental Authorization in Germany;
(w) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Purchasers to Germany or any political subdivision or
taxing authority thereof or therein in connection with (A) the
issuance, sale and delivery by the Company to or for the respective
accounts of the Purchasers of the Securities, (B) the sale and delivery
outside Germany by the Purchasers of
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the Securities to the initial purchasers thereof in the manner
contemplated under this Agreement, or (C) the execution, delivery and
performance of, and the admissibility into evidence of, the Securities,
the Exchange Securities, the Indenture, the Registration Rights
Agreement and this Agreement, in each case other than income taxes
payable on any underwriting fee paid to, or discount to the purchase
price of the Securities given to, the Purchasers, and except as
disclosed in the Offering Circular;
(x) The Company and each of its subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are
necessary to own or lease their other properties and conduct their
businesses as described in the Offering Circular, except as would not
have a Material Adverse Effect;
(y) The claims of the holders of the Securities and the
Exchange Securities will, except as expressly set forth in the
Preliminary Offering Circular and the Offering Circular, rank pari
passu with the claims of all other unsecured and unsubordinated
creditors of the Company, present and future;
(z) Neither the Company nor any of its subsidiaries or its or
their respective officers or directors has taken, directly or
indirectly, any action which was designed to or which has constituted
or which might reasonably be expected to cause or result in a violation
of Regulation M under the Act or any other laws, rules or regulation in
any jurisdiction relating to stabilization or manipulation of the price
of any security of the Company or facilitate the sale or resale of the
Securities;
(aa) When the Securities are issued and delivered pursuant to
this Agreement, the Securities will not be of the same class (within
the meaning of Rule 144A under the Act) as securities which are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(bb) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or be required to register as an "investment company", as such
term is defined in the United States Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT");
(cc) Other than the holders of the Securities pursuant to the
Registration Rights Agreement, no holder of any security of the Company
(other than Goldman Sachs International in respect of market making
activities) has or will have any right to require the registration of
such security by virtue of any transactions contemplated by this
Agreement or the Registration Rights Agreement;
(dd) Neither the Company nor any of its affiliates nor any
person acting on its behalf or on behalf of its affiliates has offered,
sold, publicly promoted or advertised and will not offer, sell,
publicly promote or advertise, directly or indirectly, any Securities
in Germany other than in compliance with the German Securities Selling
Prospectus Act (WERTPAPIERVERKAUFSPROSPEKTGESETZ) of 13th December,
1990, as amended, or any other laws applicable in Germany governing the
issue, offering and sale of securities;
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(ee) Neither the Company, nor any affiliate of the Company,
nor any person acting on its or their behalf has offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Act or, with respect to
Securities sold outside the United States (as defined in Rule 902 under
the Act), by means of any directed selling efforts within the meaning
of Rule 902 under the Act and the Company, any affiliate of the Company
and any person acting on its or their behalf has complied with and will
implement the "offering restriction" within the meaning of such Rule
903;
(ff) Within the preceding six months, neither the Company nor
any other person acting on behalf of the Company has offered or sold to
any person any Securities, or any securities of the same or a similar
class as the Securities, other than Securities offered or sold to the
Purchasers hereunder. The Company will take reasonable precautions
designed to ensure that any offer or sale by it or any other person
acting on behalf of the Company, direct or indirect, in the United
States or to any U.S. person (as defined in Rule 902 under the Act) of
any Securities or any substantially similar security issued by the
Company, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified to the
Company by the Representative), is made under restrictions and other
circumstances reasonably designed not to affect the status of the offer
and sale of the Securities in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
(gg) KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
and PwC Deutsche Revision Aktiengesellschaft who have certified certain
financial statements of the Company and its subsidiaries are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(hh) The Company is a "foreign issuer" as defined in Rule 902
under the Act;
(ii) The Company has furnished for review to the Purchasers
and their legal counsel all material documents, including contracts,
which have been requested (other than those whose delivery has not been
required by such counsel) and such documents have not materially
changed since the latest review of such counsel;
(jj) The Securities, when issued and delivered pursuant to
this Agreement, will qualify as debt for US federal income tax
purposes; and if and when required to do so, the Company will
characterize the Securities as indebtedness for purposes of Sections
385(c) of the U.S. Internal Revenue Code of 1986, as amended;
(kk) The audited and unaudited consolidated financial
statements of the Company and its subsidiaries contained in the
Offering Circular and the Preliminary Offering Circular present and
presented fairly and accurately the financial position of the Company
and its subsidiaries at their respective dates and the results of the
operations of the Company and its subsidiaries for the periods covered
thereby and (i) have been (save insofar as may be expressly stated
therein) prepared in accordance with the International Accounting
Standards ("IAS") in force at the time of preparation of such financial
statements and which have been consistently applied and (ii) to the
best knowledge of the Company, comply with the applicable requirements
of Form 20-F and Regulation S-X promulgated under the Exchange Act as
if the Company were subject to such requirements (it being
acknowledged, however, that such
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financial statements do not so comply with Rule 3-09 of Regulation S-X
insofar as separate financial statements for Singapore Syngas Pte.
Limited are not separately presented therein);
(ll) The pro forma financial information (including the notes
thereto) relating to the Company and its subsidiaries included in the
Offering Circular and the Preliminary Offering Circular (i) to the best
knowledge of the Company, comply with the applicable requirements of
Regulation S-X promulgated under the Exchange Act as if the Company
were subject to such requirements, (ii) to the best knowledge of the
Company, have been prepared in accordance with the Commission's rules
and guidelines, and (iii) have been correctly computed on the basis
described therein; the assumptions used in the preparation of the pro
forma financial information included in the Offering Circular and the
Preliminary Offering Circular are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein;
(mm) The Company and its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks which they
believe are adequate for the conduct of their respective businesses and
the value of their respective properties, except as would not have a
Material Adverse Effect;
(nn) The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, rights in a registered design, design rights, database
rights, copyrights and licenses (in each case, whether or not
registered and including applications for the same) necessary for the
conduct of their respective businesses and have no reason to believe
that the conduct of their respective businesses as now being conducted
and as described in the Offering Circular will conflict with or
infringement of, and have not received any notice of any claim of
conflict with or infringement of, any such rights of others, except as
would not have a Material Adverse Effect;
(oo) Except as described in the Offering Circular, no
relationship, direct or indirect, exists between or among the Company
on the one hand, and the directors, officers or shareholders of the
Company on the other hand, which, if Item 404 of Regulation S-K of the
Act were applicable, would be required to be described in the Offering
Circular which is not so described as required;
(pp) No labor disturbance by the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent which is expected to have a Material Adverse Effect;
(qq) Each of the Company and its Material Subsidiaries has
filed all material tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had, nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have, a Material Adverse
Effect;
(rr) Since the date of the Preliminary Offering Circular
through the date hereof, and except as may otherwise be disclosed in
the Offering Circular, the Company has not (i) issued
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or granted any securities, (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any material transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital stock;
(ss) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, and (C) access to its assets is
permitted only in accordance with management's authorization;
(tt) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or its
subsidiaries, or any contamination thereof, in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree,
permit or generally accepted technical standard or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree, permit or generally accepted technical
standard except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; and
(uu) Except as disclosed in the Offering Circular, neither the
Company nor any of its subsidiaries owns or operates any real property
contaminated with any substance that is subject to any environmental
law, ordinance, rule, regulation, order, judgement or decree or is
liable for any offsite disposal or contamination pursuant to any law,
ordinance, rule, regulation, order, judgment or decree, except unless
the remediation thereof or liability therefore would not have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect.
2. (a) Subject to the terms and conditions contained herein, the
Company agrees to issue and sell to each of the Purchasers, and each of the
Purchasers agrees, severally and not jointly, to purchase from the Company, at a
purchase price of 100.00% of the principal amount thereof, plus accrued
interest, if any, from May 16, 2001, 2001 to the Time of Delivery hereunder, the
principal amount of Securities set forth opposite the name of such Purchaser in
Schedule I hereto.
(b) As compensation for the commitment of the Purchasers
hereunder, at the Time of Delivery the Company agrees to pay, or to cause Messer
Griesheim GmbH to pay, to you on behalf of the Purchasers an underwriting fee
equal to 2.61364% of the aggregate principal amount of the Securities purchased
by the several Purchasers, such payment to be made in same day funds. The
parties acknowledge and agree that payment of such underwriting fee shall be in
satisfaction of the obligations of Messer Griesheim GmbH to pay the Refinancing
Fee (as defined in that certain Mezzanine Bridge Fee Letter, dated April 30,
2001, between among other parties Goldman Sachs International and Messer
Griesheim GmbH) pursuant to that letter and the Refinancing and Engagement
Letter to which it relates.
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3. Upon the authorization by you of the release of the Securities the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons
who it reasonably believes are "qualified institutional buyers"
("QIBs") within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A and (ii) persons outside of the
United States, upon the terms and conditions set forth in Annex I to
this Agreement;
(b) It is an Institutional Accredited Investor; and
(c) Neither it nor any of its affiliates will offer or sell
the Securities by any form of general solicitation or general
advertising, including but not limited to the methods described in Rule
502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser
hereunder will be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company with
Euroclear Bank S.A./N.V. ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or their designated custodian. The
Company will deliver the Securities to Goldman Sachs International, for the
account of each Purchaser, against payment by or on behalf of such Purchaser
of the purchase price therefor by certified or official bank check or checks,
payable to the order of the Company in same day funds, or wire transfer to an
account designated by the Representative, by causing Euroclear or Clearstream
to credit the Securities to the account of the Representative at Euroclear or
Clearstream. The Company will cause the certificates representing the
Securities to be made available to the Representative for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) at the
office of Euroclear or Clearstream or its or their designated custodian (the
"DESIGNATED OFFICE"). The time and date of such delivery and payment shall be
9:30 a.m., London time, on May 16, 2001 or such other time and date as the
Representative and the Company may agree upon in writing. Such time and date
are herein called the "TIME OF DELIVERY".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7 hereof, will be delivered at such time and date
at the London offices of Allen & Overy (the "CLOSING LOCATION"), and the
Securities will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., London
time, on the London Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "LONDON BUSINESS DAY" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in London are generally authorized or obligated by law or executive
order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Preliminary Offering Circular and Offering
Circular in a form approved by you; to make no further amendment or
any supplement to the Preliminary
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Offering Circular or Offering Circular which shall be disapproved by
you promptly after reasonable notice thereof; and to furnish you with
copies thereof in quantities as you may from time to time request;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may reasonably
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Purchasers with six (6) copies of the
Offering Circular and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent accountants'
report(s) in the Offering Circular, and any amendment or supplement
containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional written and
electronic copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the expiration of
six months after the date of the Offering Circular, any event shall
have occurred as a result of which the Offering Circular as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Offering Circular is delivered, not misleading, or,
if for any other reason it shall be necessary or desirable during such
same period to amend or supplement the Offering Circular, to notify you
and upon your request to prepare and furnish without charge to each
Purchaser and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Offering Circular or a supplement to the Offering Circular
which will correct such statement or omission or effect such
compliance;
(d) During the period beginning from the date hereof and
continuing to the date six months after the Time of Delivery not to
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any securities of the Company that are
substantially similar to the Securities;
(e) Not to be or become, at any time prior to the expiration
of two years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(f) To furnish at any time when the Company is not exempt from
reporting under Section 12g3-2(b) of the Exchange Act nor subject to
Section 13 or 15(d) of the Exchange Act at its expense, upon request,
to holders of Securities and prospective purchasers of Securities
information ("ADDITIONAL ISSUER INFORMATION") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(g) To use its best efforts to cause the Securities to be
listed on the Luxembourg Stock Exchange;
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(h) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year (i) an annual report (in
English) (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants and prepared
in conformity with IAS together with a reconciliation of net income and
total stockholders' equity to generally accepted accounting principles
in the U.S. ("U.S. GAAP") and (ii), as soon as practicable after the
end of each of the first three quarters of each fiscal year prepared in
accordance with IAS (beginning with the fiscal quarter ending after the
date of the Offering Circular), to make available to its shareholders
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail and to provide
copies thereof to you in such numbers as you shall reasonably request;
(i) During a period of two years from the date of the Offering
Circular, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of Securities
or shareholders or other security holders generally of the Company, and
to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which any class of securities
of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(j) During the period of two years after the Time of Delivery,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them, PROVIDED THAT this paragraph shall not apply
to market making activities of Goldman Sachs International and its
affiliates (other than the Company and its subsidiaries);
(k) Not to (and to cause its subsidiaries not to) take,
directly or indirectly, any action which is designed to or which
constitutes 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;
(l) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Offering Circular under the caption "Use of Proceeds";
(m) To enter into, and perform its obligations under, the
Registration Rights Agreement in the form attached as Annex II;
(n) To enter into the Indenture in the form previously
delivered to you;
(o) To enter into, and to cause the other parties thereto to
enter into, the Assignment Agreement and each of the High Yield
Structure Documents in the form previously delivered to you;
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(p) Not to make any announcement between the date of this
Agreement and the Time of Delivery without the prior approval of the
Representative which could have a material adverse effect on the
marketability of the Securities, such approval not to be unreasonably
withheld or delayed;
(q) Not to offer or sell, nor to allow any of its affiliates,
nor any person acting on its or their behalf (other than the
Purchasers) to offer or sell, the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act or, with respect to Securities sold outside the United
States (as defined in Rule 902 under the Act), by means of any directed
selling efforts within the meaning of Rule 902 under the Act;
(r) To comply, and to ensure that each of its affiliates and
each person acting on its or their behalf has complied and will comply,
with the "offering restrictions" (described in the Offering Circular)
within the meaning of Rule 903 under the Act;
(s) Not to offer, sell, publicly promote or advertise and to
use its best efforts to ensure that its affiliates and any person
acting on its behalf (other than the Purchasers) has not offered, sold,
publicly promoted or advertised and will not offer, sell, publicly
promote or advertise, directly or indirectly, any Securities in Germany
other than in compliance with the German Securities Selling Prospectus
Act (WERTPAPIERVERKAUFSPROSPEKTGESETZ) of 13th December, 1990, as
amended, or any other laws applicable in Germany governing the issue,
offering and sale of securities; and
(t) To pay any amounts due as a result of any value added
taxes ("VAT") payable by the Purchasers in respect of commissions
(whether or not paid as discounts or not), fees or expenses payable or
reimbursable by the Company pursuant to this Agreement.
6. The Company covenants and agrees with the several Purchasers that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Preliminary Offering Circular
and the Offering Circular and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Purchasers and dealers; (ii) the
cost of printing or producing any Agreement among Purchasers, this Agreement,
the Indenture, the Registration Rights Agreement, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Purchasers in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) the cost of preparing the Securities;
(vi) all expenses and taxes arising as a result of the issuance, sale and
delivery of the Securities, and of the sale and delivery outside of Germany of
the Securities by the Purchasers to the initial purchasers thereof in the
manner contemplated under this Agreement, including, in any such case, any
German income, capital gains, withholding, transfer or other tax asserted
against a Purchaser by reason of the purchase and sale of the Securities
pursuant to this Agreement, in each case other than income taxes payable on any
underwriting fee paid to, or discount to the purchase price of the Securities
given to, the Purchasers; (vii) any costs incurred in connection with the
listing of the Securities on the Luxembourg Stock Exchange; (viii) all other
costs
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and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section, and (ix) the fees and
expenses of counsel to the Trustee in respect of the Securities. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make, except as may otherwise be provided for in that certain Mezzanine
Bridge Fee Letter, dated April 30, 2001.
7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Allen & Overy, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery,
with respect to the matters as shall have been agreed with you, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(b) Milbank, Tweed, Hadley & McCloy, special United States
counsel for the Company, shall have furnished to you their written
opinion, dated the Time of Delivery, substantially in the form of Annex
III-A;
(c) Milbank, Tweed, Hadley & McCloy, special US Tax counsel
for the Company, shall have furnished to you their written opinion,
dated the Time of Delivery in form and substance acceptable to the
Representative;
(d) Hengeler Mueller, legal advisors with respect to certain
aspects of German law, shall have furnished to you their written
opinion, dated the Time of Delivery, substantially in the form of Annex
III-B;
(e) Hengeler Mueller, legal advisors with respect to certain
aspects of Hungarian law, shall have furnished to you their written
opinion in respect of Messer Hungarogaz Ipari Gazgyarto es Forgalmazo
Korlatolt Felelossegu Tarsasag, dated the Time of Delivery,
substantially in the form of Annex III-C;
(f) Peter Stowasser, general counsel of Messer Griesheim GmbH,
shall have furnished to you his written opinion in respect of Messer
Griesheim GmbH and Messer Industriegase GmbH, dated the Time of
Delivery, substantially in the form of Annex III-D and otherwise in
substance acceptable to the Representative;
(g) Jim Anderson, general counsel of Messer Griesheim
Industries, Inc., shall have furnished to you his written opinion in
respect of Messer Griesheim Industries, Inc., dated the Time of
Delivery, substantially in the form of Annex III-E and otherwise in
substance acceptable to the Representative;
(h) Peter Stowasser, general counsel of Messer Griesheim
GmbH, shall have furnished to you his written opinion in respect of
Messer Griesheim GmbH's subsidiary in
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Hungary, Messer Hungarogaz Ipari Gazgyarto es Forgalmazo Korlatolt
Felelossegu Tarsasag, dated the Time of Delivery, in form and substance
acceptable to the Representative;
(i) Baker & McKenzie, shall have furnished to you their
written opinion, dated the Time of Delivery, substantially in the form
of Annex III-F and otherwise in substance acceptable to the
Representative;
(j) On the date of the Offering Circular prior to the
execution of this Agreement and also at the Time of Delivery, KPMG
Deutsche Treuhand-Gesellschaft Aktiengesellschaft and PwC Deutsche
Revision Aktiengesellschaft shall have furnished to you letters, dated
the respective dates of delivery thereof, in form and substance
satisfactory to you;
(k) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Offering Circular any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental or quasi-governmental action, order or decree, otherwise
than as set forth in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering
Circular there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, business prospects,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth in the Offering Circular, the
effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Offering Circular;
(l) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the
Frankfurt Stock Exchange, or the Luxembourg Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the Luxembourg Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York, London or Germany
declared by the relevant authorities; (iv) a change or development
involving a prospective change in German taxation affecting the
Company, the Securities or the transfer thereof or the imposition of
exchange controls by the United States or Germany; (v) the outbreak or
escalation of hostilities involving the United States or Germany or the
declaration by the United States or Germany of a national emergency or
war or (vi) the occurrence of any material adverse change in the
existing financial, political or economic conditions in the United
States, Germany or elsewhere; provided that, with respect to clauses
(iv), (v) and (vi) above, the effect of any such event specified in
such clauses (iv), (v) or (vi), in the judgment of the Representative,
makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Offering Circular;
(m) At the Time of Delivery, Allen & Overy shall have been
furnished with such information, certificates and documents as it may
reasonably require for the purpose of enabling it to pass upon the
issuance and sale of the Securities as contemplated herein and
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related proceedings, and in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained;
(n) the Representative shall have received a counterpart,
conformed as executed, of the Indenture, the Assignment and each of the
High Yield Structure Document to which the Trustee is or will be a
party which shall have been entered into by the Company and the
Trustee;
(o) The Company shall have executed the Registration Rights
Agreement as set forth in the Offering Circular with such other terms
as shall be mutually satisfactory and the Representative shall have
received an original copy thereof, duly executed by the Company;
(p) The Securities have been accepted for listing on the
Luxembourg Stock Exchange;
(q) The Company and each other party thereto shall have
executed the Assignment Agreement and each of the High Yield Structure
Documents in the respective forms previously delivered to you and the
Representative shall have received a copy, conformed as executed, of
each, duly executed by the parties thereto; and
(r) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (e) through (h) of this Section and as to such
other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Purchaser against any losses, claims, damages or liabilities, joint or several,
to which such Purchaser may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Circular, the Offering
Circular, or any Registration Statement or Market Making Shelf Registration
Statement (as defined in the Registration Rights Agreement) or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Offering Circular or the Offering Circular or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through the Representative
expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained
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in any Preliminary Offering Circular or the Offering Circular, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or Offering Circular or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Purchaser through the
Representative expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Purchasers
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Purchasers on the other shall be deemed to be in
the same proportion as the total net
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proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Purchasers, in each case as set forth in the Offering Circular. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchasers agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Purchasers 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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Purchaser within the meaning of the Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours
after such default by any Purchaser you do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that
you have so arranged for the purchase of such Securities, or the Company
notifies you that it has so arranged for the purchase of such Securities, you
or the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Offering Circular, or in any other documents
or arrangements, and the Company agrees to prepare promptly any amendments to
the Offering Circular which in your opinion may thereby be made necessary.
The term "PURCHASER" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the
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right to require each non-defaulting Purchaser to purchase the principal amount
of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Purchasers to
purchase Securities of a defaulting Purchaser or Purchasers, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Goldman Sachs International on behalf of you as the
representative.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to you as the representative at Goldman Sachs
International, Peterborough Court, 133 Fleet Street, London EC4A 2BB,
Attention: General Counsel; telephone 0207 774 1000, telex 887902; and if to
the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Offering
Circular, Attention: Chief Financial Officer; PROVIDED, HOWEVER, that any
notice to a Purchaser pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Purchaser at its
address set forth in its Purchasers' Questionnaire, or telex
20
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constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company and, to the extent provided in Sections
8 and 10 hereof, each person who controls the Company or any Purchaser, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Purchaser shall be
deemed a successor or assign by reason merely of such purchase.
14. The Company irrevocably (i) agrees that any legal suit, action
or proceeding against the Company brought by any Purchaser or by any person
who controls any Purchaser arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court,
(ii) waives, to the fullest extent it may effectively do so, any objection
which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in
any such suit, action or proceeding. The Company irrevocably waives any
immunity to jurisdiction to which it may otherwise be entitled or become
entitled (including sovereign immunity, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby which is instituted in any New York Court or
in any competent court in Germany. The Company has appointed CT Corporation
System, at its address in New York, New York, as its authorized agent (the
"AUTHORIZED AGENT") upon whom process may be served in any such action
arising out of or based on this Agreement or the transactions contemplated
hereby which may be instituted in any New York Court by any Purchaser or by
any person who controls any Purchaser, expressly consents to the jurisdiction
of any such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
Such appointment shall be irrevocable. The Company represents and warrants
that the Authorized Agent has agreed to act as such agent for service of
process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon
the Authorized Agent and written notice of such service to the Company shall
be deemed, in every respect, effective service of process upon the Company.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Company will indemnify each Purchaser
against any loss incurred by such Purchaser as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Purchaser is able to purchase United
States dollars with the amount of judgment currency actually received by such
Purchaser within 24 hours of such receipt. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "RATE OF EXCHANGE" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
16. Time shall be of the essence of this Agreement.
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17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
22
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and the Representative plus one for each
counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Purchasers and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
MESSER GRIESHEIM HOLDING AG
By:
...................................
Name: Dr. Klaus-Jurgen Schmeider
Title: Managing Director (Vorstand)
Accepted as of the date hereof:
GOLDMAN SACHS INTERNATIONAL
By:
.......................................
Name: Emma Coxon
Title: Authorised Signatory
On behalf of each of the Purchasers
23
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SCHEDULE I
<Table>
<Caption>
PRINCIPAL AMOUNT OF
PURCHASER SECURITIES TO BE PURCHASED
--------- --------------------------
Goldman Sachs International ..............................................E247,500,000
Bayerische Hypo-und Vereinsbank AG .......................................E165,000,000
The Royal Bank of Scotland plc ...........................................E137,500,000
------------
Total ....................................................................E550,000,000
============
</Table>
<Page>
ANNEX I
(1) The Securities have not been registered under the Act and may not
be offered or sold except in accordance with Regulation S under the Act or
pursuant to an exemption from the registration requirements of the Act. Each
Purchaser represents that it has offered and sold the Securities, and will offer
and sell the Securities as part of their distribution only in accordance with
Rule 903 of Regulation S or Rule 144A or pursuant to Paragraph 2 of this Annex I
under the Act. Accordingly, each Purchaser agrees that neither it, its
affiliates (other than the Company) nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts with respect
to the Securities, and it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Terms used in this paragraph
have the meanings given to them by Regulation S.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States pursuant to
Section 3 of this Agreement.
(3) Each Purchaser further represents and agrees that (i) it has not offered or
sold and prior to the date six months after the date of issue of the Securities
will not offer or sell any Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended, (b) it has complied,
and will comply, with all applicable provisions of the Financial Services Act of
1986 of Great Britain with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom, and (c) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issuance of the Securities to
a person who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) of
Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(4) Each Purchaser represents and agrees that it has not and will not
offer, sell, publicly promote or advertise, directly or indirectly, any
Securities in Germany other than in compliance with the German Securities
Selling Prospectus Act (WERTPAPIERVERKAUFSPROSPEKTGESETZ) OF 13th December,
1990, as amended, or any other laws applicable in Germany governing the issue,
offering and sale of securities.
(5) Each Purchaser represents and agrees that it has not offered, sold,
transferred or delivered the Securities and will not offer, sell, transfer or
deliver the Securities in The Netherlands, other than to individuals or legal
entities who, or which, trade or invest in securities in the conduct of a
business or a profession (including, but not limited to, banks, brokers,
dealers, asset management companies, investment funds, insurance companies,
pension funds, other institutional investors and treasury departments of large
commercial enterprises).
(6) Each Purchaser agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United States except
under circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is required
to permit its purchase and resale of the Securities in such jurisdictions.
Each Purchaser understands that no action has been taken to permit a public
offering in any jurisdiction outside the United States
I
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where action would be required for such purpose. Each Purchaser agrees not to
cause any advertisement of the Securities to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Securities, except in any such case with Goldman Sachs
International's express written consent and then only at its own risk and
expense.
I
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ANNEX II
REGISTRATION RIGHTS AGREEMENT
II
<Page>
ANNEX III
FORMS OF OPINIONS
III
<Page>
ANNEX III-A
III
<Page>
ANNEX III-B
III
<Page>
ANNEX III-C
III
<Page>
ANNEX III-D
III
<Page>
ANNEX III-E
III
<Page>
ANNEX III-F
III