Exhibit 1.2
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VISHAY INTERTECHNOLOGY, INC.
(a Delaware corporation)
1,100,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: May 9, 2000
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Table of Contents
Page
SECTION 1. Representations and Warranties...................................3
(a) Representations and Warranties by the Company...........................3
(i) Compliance with Registration Requirements........................4
(ii) Incorporated Document............................................4
(iii) Independent Accountants..........................................5
(iv) Financial Statements.............................................5
(v) No Material Adverse Change in Business...........................5
(vi) Good Standing of the Company.....................................5
(vii) Good Standing of Subsidiaries....................................6
(viii) Capitalization...................................................6
(ix) Authorization of Agreement.......................................6
(x) Authorization and Description of Securities......................6
(xi) Absence of Defaults and Conflicts................................7
(xii) Absence of Labor Dispute.........................................7
(xiii) Absence of Proceedings...........................................7
(xiv) Accuracy of Exhibits.............................................8
(xv) Possession of Intellectual Property..............................8
(xvi) Absence of Further Requirements..................................8
(xvii) Possession of Licenses and Permits...............................8
(xviii)Title to Property................................................9
(xix) Investment Company Act...........................................9
(xx) Environmental Laws...............................................9
(b) Representations and Warranties by the Selling Stockholder..............10
(i) Accurate Disclosure.............................................10
(ii) Authorization of Agreements.....................................10
(iii) Good and Marketable Title.......................................11
(iv) Due Execution of Power of Attorney and Custody Agreement........11
(v) Absence of Manipulation.........................................11
(vi) Absence of Further Requirements.................................11
(vii) Restriction on Sale of Securities...............................11
(viii) Notice of Exercise..............................................12
(ix) No Association with NASD........................................12
(c) Officer's Certificates.................................................12
SECTION 2. Sale and Delivery to International Managers; Closing............12
(a) Initial Securities.....................................................12
(b) Option Securities......................................................12
(c) Payment................................................................13
(d) Denominations; Registration............................................14
SECTION 3.Covenants of the Company............................................14
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(a) Compliance with Securities Regulations and Commission Requests..14
(b) Filing of Amendments............................................14
(c) Delivery of Registration Statements.............................15
(d) Delivery of Prospectuses........................................15
(e) Continued Compliance with Securities Laws.......................15
(f) Blue Sky Qualifications.........................................16
(g) Rule 158........................................................16
(h) Use of Proceeds.................................................16
(i) Listing.........................................................16
(j) Restriction on Sale of Securities...............................16
(k) Reporting Requirements..........................................17
SECTION 4. Payment of Expenses.............................................17
(a) Expenses...............................................................17
(b) Expenses of the Selling Stockholders...................................17
(c) Termination of Agreement...............................................17
(d) Allocation of Expenses.................................................17
SECTION 5. Conditions of International Managers' Obligations...............18
(a) Effectiveness of Registration Statement.........................18
(b) Opinion of Counsel for Company..................................18
(c) Opinion of Counsel for the Selling Stockholders.................18
(d) Opinion of Counsel for International Managers...................19
(e) Officers' Certificate...........................................19
(f) Certificate of Selling Stockholders.............................19
(g) Accountant's Comfort Letter.....................................19
(h) Bring-down Comfort Letter.......................................20
(i) Approval of Listing.............................................20
(j) Lock-up Agreements..............................................20
(k) Purchase of Initial U.S. Securities.............................20
(l) Conditions to Purchase of International Option Securities.......20
(i) Officers' Certificate...........................................20
(m) Additional Documents............................................21
(n) Termination of Agreement........................................21
SECTION 6. Indemnification.................................................21
(a) Indemnification of International Managers..............................21
(b) Indemnification of Company, Directors and Officers and Selling
Stockholders...........................................................22
ii
(c) Actions against Parties; Notification..................................23
(d) Settlement without Consent if Failure to Reimburse.....................23
SECTION 7. Contribution....................................................24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..25
SECTION 9. Responsibility of Selling Stockholders..........................25
SECTION 10. Termination of Agreement........................................26
(a) Termination; General...................................................26
(b) Liabilities............................................................26
SECTION 11. Default by One or More of the International Managers............26
SECTION 12. Default by the Selling Stockholders.............................27
SECTION 13. Notices.........................................................27
SECTION 14. Parties.........................................................27
SECTION 15. Governing Law and Time..........................................28
SECTION 16. Effect of Headings..............................................28
SCHEDULES
Schedule A - Listing of Underwriters.....................Sch A-1
Schedule B - Pricing Information.........................Sch B-1
Schedule C - List of Subsidiaries........................Sch C-1
Schedule D - List of Person(s) Subject to Lock-up........Sch D-1
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EXHIBITS
Exhibit A - Form of Opinion of Special Counsel for the
Company.......................................... A-1
Exhibit B - Form of Opinion of General Counsel for the
Company...........................................B-1
Exhibit C - Form of Opinion of Counsel for the Selling
Stockholders......................................C-1
Exhibit D - Form of Lock-up Letter...........................D-1
ANNEXES
Annex A - Form of Accountants' Comfort Letter ..........Annex A-1
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VISHAY INTERTECHNOLOGY, INC.
(a Delaware corporation)
1,100,000 Shares of Common Stock
(Par Value $.10 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: May 9, 2000
MERRILL LYNCH INTERNATIONAL
Bear, Stearns International Limited
Donaldson, Lufkin & Jenrette International
Needham & Company, Inc.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Vishay Intertechnology, Inc., a Delaware corporation (the
"Company") and Avi D. Eden, Richard N. Grubb and Gerald Paul (collectively the
"Selling Stockholders"), confirm their respective agreements with Merrill Lynch
International ("Merrill Lynch") and each of the other international underwriters
named in Schedule A hereto (collectively, the "International Managers", which
term shall also include any underwriter substituted as hereinafter provided in
Section 11 hereof), for whom Merrill Lynch, Bear, Stearns International Limited,
Donaldson, Lufkin & Jenrette International and Needham & Company, Inc. are
acting as Representatives (in such capacity, the "Lead Managers"), with respect
to (i) the sale by the Company and the Selling Stockholders, acting severally
and not jointly, and the purchase by the International Managers, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $.10 per share, of the Company ("Common Stock") set forth in said
Schedule A in the aggregate amount of 1,100,000 shares of Common Stock and (ii)
the grant by the Company to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 165,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 1,100,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 165,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company and the Selling Stockholders
are concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the (i) sale by the Company and the Selling
Stockholders, acting severally and not jointly, and the purchase by the Company
of an aggregate of 4,700,000 shares of Common Stock (the "Initial U.S.
Securities") through arrangements with certain underwriters in the United States
and Canada (the "U.S. Underwriters") for which Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Bear, Stearns & Co. Inc., Donaldson, Lufkin & Jenrette
Securities Corporation and Needham & Company, Inc. are acting as representatives
(the "U.S. Representatives") and (ii) the grant by the Company to the U.S.
Underwriters, acting severally and not jointly, of an option to purchase all or
any part of the U.S. Underwriters' pro rata portion of up to 705,000 additional
shares of Common Stock solely to cover overallotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities". It is understood that the Company and
the Selling Stockholders are not obligated to sell and the International
Managers are not obligated to purchase, any Initial International Securities
unless all of the Initial U.S. Securities are contemporaneously purchased by the
U.S. Underwriters.
The International Managers and the U.S. Underwriters are
hereinafter collectively called the "Underwriters", the Initial International
Securities and the Initial U.S. Securities are hereinafter collectively called
the "Initial Securities", and the International Securities, and the U.S.
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 & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Stockholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-34178) for the
registration of debt securities and common stock, including the Securities,
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act Regulations (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto as
may be required prior to the execution of this agreement and each such
post-effective amendment has been declared effective by the Commission. Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. 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, as the case may be, that was
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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 of the 1933 Act Regulations
is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of
Rule 434 of the 1933 Act Regulations is referred to as "Rule 434 Information."
Each Form of International Prospectus and Form of U.S. Prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement (as so amended, if applicable), including the Rule 430A Information or
the Rule 434 Information, is referred to herein as 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 International Prospectus and
the final Form of U.S. Prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
forms first furnished to the Underwriters for use in connection with the
offering of the Securities are herein called the "International Prospectus" and
the "U.S. Prospectus," respectively, and collectively, the "Prospectuses." If
Rule 434 is relied on, the terms "International Prospectus" and "U.S.
Prospectus" shall refer to the preliminary International Prospectus dated May 1,
2000 and preliminary U.S. Prospectus dated May 1, 2000, respectively, each
together with the applicable Term Sheet and all references in this Agreement to
the date of such Prospectuses shall mean the date of the applicable Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the International Prospectus, the U.S. Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus (including the Form of
U.S. Prospectus and Form of International Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
17. Representations and Warranties.
SS. Representations and Warranties by the Company. The Company
represents and warrants to each International Manager 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)
3
referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(a) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the
1933 Act. The Registration Statement (including 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 such 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.
r) At the respective times the Registration Statement, (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, (including any 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. At the date of the Prospectuses,
at the Closing Time and at each Date of Delivery, if any, neither of the
Prospectuses nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
If the Company elects to rely upon Rule 434 of the 1933 Act Regulation, the
Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the International Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager through the Lead Managers
expressly for use in the Registration Statement or the International
Prospectus.
s) 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 under the 1933 Act, 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 the offering of the Securities was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T of the
Commission.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectuses, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934
Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), as applicable, and, when read together with the
other information in the
4
Prospectuses, at the time the Registration Statement became effective,
at the time the Prospectuses were issued and at the Closing Time (and,
if any International Option Securities are purchased, at the Date of
Delivery), 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.
(c) 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.
(b) Financial Statements. The financial statements included
in the Registration -------------------- Statement and
the Prospectuses, together with the related schedules
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 generally accepted accounting
principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting
schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data 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. In addition, any pro forma financial
statements and the related notes thereto included in
the Registration Statement and the Prospectuses present
fairly the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial
statements and have been properly compiled on the bases
described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(c) 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, (A) there has been no
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries,
5
other than those in the ordinary course of business,
which are 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.
(d) 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 would
not result in a Material Adverse Effect.
(e) 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 or organization, 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 stated in the
Registration Statement and the Prospectuses, 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. The only
Subsidiaries of the Company are the subsidiaries listed
on Schedule C hereto.
(f) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectuses in the
6
column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred
to in the Prospectuses). The shares of issued and
outstanding capital stock, including the Securities to
be purchase by the International Managers from the
Selling Stockholders, have been duly authorized and
validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock,
including the Securities to be purchase by the
International Managers from the Selling Stockholders,
of the Company was issued in violation of the
preemptive or other similar rights of any
securityholder of the Company.
(g) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(h) Authorization and Description of Securities. The
Securities to be purchased by the International
Managers and the U.S. Underwriters from the Company
have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and
the U.S. Underwriters pursuant to the U.S. Purchase
Agreement, respectively, and, when issued and delivered
by the Company pursuant to this Agreement and the U.S.
Purchase Agreement, respectively, against payment of
the consideration set forth herein and the U.S.
Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained
in the Prospectuses and such description conforms to
the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to
personal liability by reason of being such a holder;
and the issuance of the Securities is not subject to
the preemptive or other similar rights of any
securityholder of the Company.
(i) 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
7
or any subsidiary is subject (collectively, "Agreements
and Instruments") except for such defaults that have
not and would not result in a Material Adverse Effect;
and the execution, delivery and performance of this
Agreement and the U.S. Purchase Agreement and the
consummation of the transactions contemplated in this
Agreement, the U.S. Purchase Agreement and in the
Registration Statement (including the issuance and sale
of the Securities and the use of the proceeds to the
Company 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 U.S. Purchase Agreement
have been duly authorized by all necessary corporate
action and do not and will not, whether with or without
the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or 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 or
defaults or liens, charges or encumbrances that would
not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or
any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government,
government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
subsidiary.
(j) 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, would
reasonably be expected to result in a Material Adverse
Effect.
(k) 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
8
disclosed in the Registration Statement (other than as
disclosed therein), or which would reasonably be
expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and
adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in
this Agreement and the U.S. 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,
would not reasonably be expected to result in a
Material Adverse Effect.
(l) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the
Registration Statement, the Prospectuses or the
documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so
described and filed as required.
(m) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or
other intellectual property (collectively,
"Intellectual Property") necessary to carry on the
business now operated by them, and 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, and which infringement
or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in
a Material Adverse Effect.
(n) 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 U.S. Purchase Agreement or the consummation of
the
9
transactions contemplated by this Agreement and the
U.S. Purchase Agreement, except such as have been
already obtained or as may be required under the 1933
Act or the 1933 Act Regulations and foreign or state
securities or blue sky laws.
(o) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated
by them; 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 would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse
Effect; and 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, singly or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse
Effect.
(p) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property
owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or
encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or
in the aggregate, materially affect the value of such
property and do not interfere with the use made and
proposed to be made of such property by the Company or
any of its subsidiaries; 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 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 any such claim
as would not, singly or in the aggregate with any other
such claims, have a Material Adverse Effect.
10
(q) 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 Prospectus will not be,
an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940
Act").
(r) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly
or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any 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) the Company
and its subsidiaries have all permits, authorizations
and approvals required under any applicable
Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or
threatened 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 would reasonably be
expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental
Laws.
TT. Representations and Warranties by the Selling Stockholder. Each
of the Selling Stockholders represents and warrants to each
International Manager as of the date hereof and as of the Closing
Time and agrees with each International Manager, as follows:
(a) Accurate Disclosure. The representations and warranties
of the Company contained in Section 1(a) hereof are
true and correct;
11
such Selling Stockholders have reviewed and are
familiar with the Registration Statement and the
Prospectuses and, neither the Prospectus nor any
amendments or supplements thereto or, when read
together with the other information in the Prospectus,
documents incorporated or deemed to be incorporated by
reference therein, includes any untrue statement of a
material fact 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; such Selling Stockholder is not
prompted to sell the Securities to be sold by the
Selling Stockholders hereunder by any information
concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses; and the
documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the
Prospectus, when they became effective or at the time
they were or hereafter are filed with the Commission,
when read together with the other information in the
Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued
and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), 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.
(b) Authorization of Agreements. The execution and delivery
of this Agreement and the Power of Attorney and Custody
Agreement (the "Power of Attorney and Custody
Agreement") and the sale and delivery of the Securities
to be sold by such Selling Stockholder and the
consummation of the transactions contemplated herein
and compliance by such Selling Stockholder with his
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 Stockholder
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
Stockholder is a party or by which such Selling
Stockholder may be bound, or to which any of the
property or assets of such Selling Stockholder are
subject, nor will such action result in any violation
applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of
its properties.
12
(c) Good and Marketable Title. Such Selling Stockholder
will at the Closing Time have good and marketable title
to the Securities to be sold by such Selling
Stockholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity
or encumbrance of any kind, other than pursuant to this
Agreement; and upon delivery of such Securities and
payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no
notice of any adverse claim, each of the Underwriters
will receive good and marketable title to the
Securities purchased by it from such Selling
Stockholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(d) Due Execution of Power of Attorney and Custody
Agreement. Such Selling Stockholder has duly executed
and delivered, in the form heretofore furnished to the
Representatives, the Power of Attorney and Custody
Agreement with Avi D. Eden, as attorney-in-fact (the
"Attorney-in-Fact") and American Stock Transfer & Trust
Company, as custodian (the "Custodian"); the Custodian
is authorized to deliver the Securities to be sold by
such Selling Stockholder hereunder and to accept
payment therefor; and the Attorney-in-Fact is
authorized to execute and deliver this Agreement and
the certificate referred to in Section 5(f) or that may
be required pursuant to Section 5(m) on behalf of such
Selling Stockholder, to sell, assign and transfer to
the Underwriters the Securities to be sold by such
Selling Stockholder hereunder, to determine the
purchase price to be paid by the Underwriters to such
Selling Stockholder, as provided in Section 2(a)
hereof, to authorize the delivery of the Securities to
be sold by such Selling Stockholder hereunder, to
accept payment therefor, and otherwise to act on behalf
of such Selling Stockholder in connection with this
Agreement.
(e) Absence of Manipulation. Such Selling Stockholder has
not taken, and will not take, directly or indirectly,
any action which is designed to or which has
constituted or which would 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.
(f) 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
Stockholder of his obligations hereunder or in the
Power of
13
Attorney and Custody Agreement, or in connection with
the sale and delivery of the Securities hereunder or
the consummation of the transactions contemplated by
this Agreement, except such as may have previously been
made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities
laws or securities laws of other jurisdictions.
(g) Restriction on Sale of Securities. During a period of
90 days from the date of the Prospectuses, each Selling
Stockholder will not, without the prior written consent
of Merrill Lynch, (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 to purchase or otherwise transfer or dispose
of, directly or indirectly, 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 clauses (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 the
Securities to be sold hereunder.
(h) Notice of Exercise. A Notice of Exercise, duly executed
and delivered by the Attorney-in-Fact, relating to the
election of the Selling Stockholders to exercise
certain stock options held by the Selling Stockholders,
has been placed in custody with the Custodian with
irrevocable conditional instructions to deliver the
Securities which are issuable under such stock options
and are to be sold by such Selling Stockholders
pursuant to this Agreement to the International
Managers pursuant to this Agreement.
(i) 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.
UU. Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global
Coordinator, the Lead Managers or to counsel for the Underwriters
shall be deemed a representation and warranty by
14
the Company to each Underwriter as to the matters covered thereby. Any
certificate signed by or on behalf of any Selling Stockholder as such
and delivered to the Global Coordinator, the Lead Managers or to
counsel for the Underwriters shall be deemed a representation and
warranty by such Selling Stockholder as to matters covered thereby.
18. Sale and Delivery to International Managers; Closing.
15
VV. Initial Securities. 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
Stockholders agree to sell to each International Manager,
severally and not jointly, and each International Manager,
severally and not jointly, agrees to purchase from the Company
and the Selling Stockholders, at the price per share set forth in
Schedule B, the number of Initial International Securities set
forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International
Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 11 hereof.
WW. 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 hereby
grants an option to the International Managers, severally and not
jointly, to purchase up to an additional 165,000 shares of Common
Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial International
Securities but not payable on the International Option
Securities. 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 International Securities upon notice
by the Global Coordinator to the Company setting forth the number
of International Option Securities as to which the several
International Managers are then exercising the option and the
time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the
International 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 exercised as to all or any portion of the
International Option Securities, each of the International
Managers, acting severally and not jointly, will purchase that
proportion of the total number of International Option Securities
then being purchased which the number of Initial International
Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial
International 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.
XX. Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the
offices of Brown & Wood LLP, One world Trade Center, New York,
New York 10048, 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 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator
and the
16
Company and the Selling Stockholders (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International
Option Securities are purchased by the International Managers, payment of the
purchase price for, and delivery of certificates for, such International 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 and the
Selling Stockholders, 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 Stockholders
by wire transfer of immediately available funds to a bank account designated by
the Company and the Selling Stockholders, against delivery to the Lead Managers
for the respective accounts of the International Managers of certificates for
the International Securities to be purchased by them. It is understood that each
International Manager has authorized the Lead Managers, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Initial International Securities and the International Option Securities, if
any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International Securities
or the International Option Securities, if any, to be purchased by any
International Manager 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 International Manager from its obligations hereunder.
YY. Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities,
if any, shall be in such denominations and registered in such
names as the Lead Managers 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
International Securities and the International Option Securities,
if any, will be made available for examination and packaging by
the Lead Managers in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time
or the relevant Date of Delivery, as the case may be.
19. Covenants of the Company. The Company covenants with each
International Manager as follows:
(kk) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, 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
17
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 promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company 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.
(ll) 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)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, 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 or
counsel for the International Managers shall reasonably object.
(mm) Delivery of Registration Statements. The Company has
furnished or will deliver to the Lead Managers and counsel for the International
Managers, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T of the Commission.
(nn) Delivery of Prospectuses. The Company has delivered to
each International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager 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 International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T of the Commission.
18
(oo) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement, the U.S. 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 International Managers 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 it
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 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 International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably request.
(pp) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions 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, 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.
(qq) 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.
(rr) 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 the caption "Use of Proceeds".
(ss) Listing. The Company will use its best efforts to
effect the listing of the Securities, prior to the Closing Time, on the New York
Stock Exchange.
19
(tt) Restriction on Sale of Securities. During a period of
90 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 clauses (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 to be sold hereunder or under the
U.S. 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.
(uu) 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 1934 Act Regulations.
20. Payment of Expenses.
ZZ. Expenses. The Company will pay, or cause to be paid, all expenses
incident to the performance of their obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally
filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any agreement
among Underwriters 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
20
printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets 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 and (ix) the fees and expenses
incurred in connection with the listing of the Securities on the New
York Stock Exchange.
AAA. Expenses of the Selling Stockholders. The Selling Stockholders will
pay all expenses incident to the performance of their obligations
under, and the consummation of the transactions contemplated by, this
Agreement to the extent, if any, not paid by the Company, including
(i) any stamp duties, capital duties and stock transfer taxes, if any,
payable upon the sale of the Securities to the Underwriters, and their
transfer between the Underwriters pursuant to an agreement between the
International Managers, and (ii) the fees and disbursements of their
counsel and accountants, if any, not paid or payable by the Company
pursuant to Section 4(a)(iv) or otherwise.
BBB. Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the International
Managers for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the International
Managers.
(d) Allocation of Expenses. The provisions of this Section shall not affect
any agreement that the Company and the Selling Stockholders may make for the
sharing of such costs and expenses.
21. Conditions of International Managers' Obligations. The obligations
of the several International Managers hereunder are subject to the accuracy of
the representations and warranties of the Company and the Selling Stockholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of the Selling Stockholders
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(vv) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, 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 International
Managers. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
21
(ww) Opinion of Counsel for Company. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of (i) Kramer Levin Naftalis & Frankel LLP, special counsel for the
Company, in form and substance satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such letter for each of
the other International Managers to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the International Managers may reasonably
request and (ii) Avi D. Eden, counsel to the Company, in form and substance
reasonably satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other International
Managers to the effect set forth in Exhibit B hereto and to such further effect
as counsel to the International Managers may reasonably request. Each 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 certain public officials.
(xx) Opinion of Counsel for the Selling Stockholders. At
Closing Time, the Lead Managers shall have received the favorable opinion, dated
as of Closing Time, of Kramer Levin Naftalis & Frankel LLP, counsel for the
Selling Stockholders, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced copies of such letter
for each of the other International Managers, to the effect set forth in Exhibit
C hereto and to such further effect as counsel to the Underwriters may
reasonably request. 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.
(yy) Opinion of Counsel for International Managers. At
Closing Time, the Lead Managers shall have received the favorable opinion, dated
as of Closing Time, of Brown & Wood LLP, counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers with respect to the matters set forth in clauses (i),
(ii), (v), (vi) (solely as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (viii) through
(x), inclusive, (xiii), (xv) (solely as to the information in the Prospectus
with respect to the Common Stock under the caption "Description of Capital
Stock") 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, 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 Lead Managers. 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.
(zz) 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 the earnings, 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, and the
Lead Managers shall have received a certificate of the President or a Vice
President of the Company
22
and of the chief financial 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 satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(aaa) Certificate of Selling Stockholders. At Closing Time,
the Representatives shall have received a certificate of the Attorney-in-Fact on
behalf of the Selling Stockholders, dated as of Closing Time, to the effect that
(i) the representations and warranties of the Selling Stockholders contained in
Section 1(b) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time and (ii) the Selling
Stockholders have complied in all material respects with all agreements and
satisfied all conditions on its part to be performed under this Agreement at or
prior to Closing Time. The Attorney-in-Fact shall be entitled to rely upon
certificates of the Selling Stockholders in giving this certificate.
(bbb) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Lead Managers shall have received from Ernst &
Young LLP a letter dated the date hereof, in form and substance satisfactory to
the Lead Managers, together with signed or reproduced copies of such letter for
each of the other International Managers 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.
(ccc) Bring-down Comfort Letter. At Closing Time, the Lead
Managers shall have received from Ernst & Young LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(ddd) Approval of Listing. At Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(ii) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit D hereto signed by the persons listed on Schedule D hereto.
(eee) Purchase of Initial U.S. Securities. Contemporaneously
with the purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have purchased the
Initial U.S. Securities under the U.S. Purchase Agreement.
23
(fff) Conditions to Purchase of International Option
Securities. In the event that the International Managers exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any subsidiary of the Company hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the Lead
Managers 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 the Closing Time pursuant to Section 5(e)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of (a)
Kramer Levin Naftalis & Frankel LLP, special counsel for the
Company, in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery,
relating to the International 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 and
(b) Avi D. Eden, counsel to the Company, in form and
substance satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the
International 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.
(iii) Opinion of Counsel for International Managers. The
favorable opinion of Brown & Wood LLP, counsel for the
International Managers, dated such Date of Delivery,
relating to the International 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.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young LLP,
in form and substance satisfactory to the Lead Managers and
dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Lead Managers
pursuant to Section 5(h) 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.
(ggg) Additional Documents. At Closing Time and at each Date
of Delivery counsel for the International Managers 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 Stockholders in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Lead Managers and
counsel for the International Managers.
24
(n) Termination of Agreement. If any condition specified in this
Section 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
International Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to
purchase the relevant Option Securities may be terminated by the Lead
Managers 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.
22. Indemnification.
CCC. Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each
person, if any, who controls any International Manager within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to
the extent and in the manner set forth in clauses (i), (ii), and (iii)
below. In addition, subject to subsection (e) of this Section, each
Selling Stockholder, severally and not jointly (in the proportion that
the number of Securities being sold by such Selling Stockholders bears
to the total number of Securities), agrees to indemnify and hold
harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
t) (i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
u) (ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the
Company; and
v) (iii) 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, to
the extent that any such expense is not paid under clauses (i) or (ii)
above;
25
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense 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
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
DDD. Indemnification of Company, Directors and Officers and Selling
Stockholders. Each International Manager 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 the
Selling Stockholders and each person, if any, who controls the
Selling Stockholders within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any
preliminary international prospectus or the International
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such International Manager through the Lead Managers
expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto).
EEE. 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 and the Selling Stockholders. An indemnifying party
may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations
26
or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim 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.
FFF. Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 6(a)
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, unless the indemnifying party shall in
good faith contest the reasonableness of such fees and expenses
(but only to the extent so contested) or the entitlement of the
indemnified person to indemnification under the terms of Section
6.
(e) Selling Stockholders. No Selling Stockholder shall be
responsible for the payment of an amount, pursuant to this Section, which
exceeds the net proceeds received by such Selling Stockholder from the sale of
the Securities by such Selling Stockholder hereunder.
(f) Other Agreements with Respect to Indemnification. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Stockholders with respect to indemnification.
23. 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 Stockholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and of the International Managers on
the other hand in connection with the statements or
27
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the International Managers on the other hand in
connection with the offering of the International 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 International Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on
the one hand and the International Managers 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 and the
Selling Stockholders or by the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Stockholders and the International
Managers 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
International Managers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
International Manager shall be required to contribute any amount in excess of
the amount by which the total price at which the International Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Managers has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Selling
Stockholder shall be required to contribute any amount in excess of the amount
by which the total net proceeds from the offering of the International
Securities pursuant to this Agreement (before deducting expenses) received by
such Selling Stockholder exceeds the amount of any damages which such Selling
Stockholder would otherwise be required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
28
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
an International Managers within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, 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 and the Selling Stockholders 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 the Selling Stockholders, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not effect any agreement
among the Company and the Selling Stockholders with respect to contribution.
24. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, any of its subsidiaries
or the Selling Stockholders submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any International Manager or controlling person, or by or on behalf of
the Company or any Selling Stockholder, and shall survive delivery of the
Securities to the International Managers.
25. Responsibility of Selling Stockholders. Notwithstanding the
provisions of any other section of this Agreement, no Selling Stockholder shall
be responsible for the payment of any amount or amounts, pursuant to this
Agreement, that in the aggregate exceeds or exceed the net proceeds received by
such Selling Stockholder from the sale of the Securities by such Selling
Stockholder hereunder.
26. Termination of Agreement.
GGG. Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company and the Selling Stockholders,
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
International Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, 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, 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
29
such as to make it, in the judgment of the Lead Managers,
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 New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New
York authorities.
HHH. 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, 8 and 9 shall survive
such termination and remain in full force and effect.
27. Default by One or More of the International Managers. If one
or more of the International Managers 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 Lead Managers shall have
the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting International Managers, 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 Lead Managers shall not have completed such arrangements
within such 24-hour period, then this Agreement shall terminate without
liability on the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any
defaulting International Manager 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 the Closing Time, which does not result in a termination of the obligation
of the International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers or (ii) the Company and the Selling Stockholders shall have the right
to postpone the 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 Prospectus or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 11.
28. Default by the Selling Stockholders. If any Selling
Stockholder shall fail at Closing Time to sell and deliver the number of
Securities that such Selling Stockholder is obligated to sell hereunder, then
the Company may sell and deliver such number of Securities to cure such default
by such Selling Stockholder. If any Selling Stockholder shall fail at Closing
Time to sell and deliver the number of Securities that such Selling Stockholder
is obligated to
30
sell and the Company does not cure such default, the International Managers may,
at the option of the Lead Managers, either (a) terminate this Agreement without
any liability on the fault 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 Selling Stockholders have agreed
to sell. No action taken pursuant to this Section 11 shall relieve the Selling
Stockholders so defaulting from liability, if any, in respect of such default.
In the event of a default by the Selling Stockholders as referred to in
this Section 11, each of the Lead Managers shall have the right to postpone the
Closing Time or the Date of Delivery for a period not exceeding seven days in
order to effect any required change in the Registration Statement or Prospectus
or in any other documents or arrangements.
29. 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
International Managers shall be directed to the Lead Managers at North Tower,
World Financial Center, New York, New York 10281-1201, attention of Equity
Syndicate; and notices to the Company and the Selling Stockholders shall be
directed to them at Vishay Intertechnology, Inc., 63 Lincoln Highway, Malvern,
PA 19335-2120, attention of the Chief Financial Officer.
30. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers and the Company and the Selling
Stockholders 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 International Managers and the Company 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
International Managers, the Company and the Selling Stockholders 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 International
Manager shall be deemed to be a successor by reason merely of such purchase.
31. 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.
32. 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.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers, the Company and the Selling Stockholders in
accordance with its terms.
Very truly yours,
VISHAY INTERTECHNOLOGY, INC.
By_________________________________
Title:
AVI D. EDEN
By_________________________________
Title: Attorney-in-Fact for himself and
for each of the other Selling
Stockholders
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
BEAR, STEARNS INTERNATIONAL LIMITED
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
NEEDHAM & COMPANY, INC.
By: MERRILL LYNCH INTERNATIONAL
By________________________________
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
32
SCHEDULE A
Number of Initial
Name of International Manager International Securities
----------------------------- ------------------------
Merrill Lynch International......................... 550,000
Bear, Sterns International Limited.................. 236,500
Donaldson, Lufkin & Jenrette International.......... 236,500
Needham & Company, Inc.............................. 77,000
-------
Total............................................... 1,100,000
=========
Sch A-1
SCHEDULE B
VISHAY INTERTECHNOLOGY, INC.
1,100,000 Shares of Common Stock
(Par Value $.10 Per Share)
w) 1. The public offering price per share for the Securities, determined as
provided in said Section 2, shall be $73.50.
x) 2. The purchase price per share for the International Securities to be paid
by the several International Managers shall be $70.75, being an amount equal
to the public offering price set forth above less $2.75 per share; provided
that the purchase price per share for any International 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
International Securities but not payable on the International Option
Securities.
Sch B-1
SCHEDULE C
VISHAY INTERTECHNOLOGY, INC.
LIST OF SUBSIDIARIES
Percent
Name Jurisdiction of Equity
Pamela Verwaltungsgesellschaft GmbH Germany 100%
Vishay Semiconductor BmgH Germany 100%
Vishay Semiconductor Itzehoe BmbH Germany 100%
Vishay Semiconductor GES.M.B.H. Austria 100%
Vishay Temic Acquisition Holding Corporation Delaware 100%
Siliconix, Inc. Delaware 80.4%
Siliconix Technology C.V. Netherlands 100%
Siliconix Technology B.V. Netherlands 100%
Siliconix Israel Ltd. Israel 100%
Siliconix Ltd. England 100%
Siliconix Taiwan Ltd. Taiwan 100%
Siliconix, LTD. Taiwan Taiwan 100%
Vishay Siliconix, LLC Delaware 100%
Shanghai Simconix electronic Company Ltd. China 90%
Note: Names of Subsidiaries are indented under name of parent.
Directors' or other shares required by statute in foreign jurisdictions and
totaling less than 1% of equity are omitted.
Siliconix Semiconductor, inc. Delaware 100%
Vishay VSH Holdings, Inc. Delaware 100%
Vishay Measurements Group, Inc. Delaware 100%
Vishay Israel Limited Israel 100%
Z.T.R. Electronics Ltd. Israel 100%
Vishay International Trade Ltd. Israel 100%
Dale Israel Electronics Industries, Ltd. Israel 100%
Draloric Israel Ltd. Israel 100%
V.I.E.C. Ltd. Israel 100%
Vishay Advance Technology, Ltd. Israel 100%
Sch C-1
Vishay Europe GmbH Germany 57.8%
by
Vishay
Israel;
38.5%
by
Vishay;
2.4%
by
Vilna;
1.3%
by
Dale
Vishay Electronic GmbH Germany 100%
Vishay S.A. France 99.8%
Vishay Thin Film, Inc. New York 100%
Vishay Components (U.K.) Ltd. England & Wales 100%
Vishay Dale Holdings, Inc. Delaware 100%
Vishay Dale Electronics, Inc. Delaware 100%
Vishay Sprague holdings Corp. Delaware 100%
Vishay Sprague Sanford, Inc.
Vishay Sprague, Inc. Delaware 100%
Vishay Acquisition Holdings Corp. Delaware 100%
Vishay Vitramon, Incorporated Delaware 100%
Sch C-2
SCHEDULE D
LIST OF PERSONS AND ENTITIES
SUBJECT TO LOCK-UP
Name Positions Held at the Company
---- -----------------------------
Felix Zandman*....................... Chairman of the Board, Chief
Executive Officer and Director
Avi D. Eden*......................... Vice-Chairman of the Board,
Executive Vice President, General
Counsel and Director
Gerald Paul*......................... Chief Operating Officer, President
and Director
Richard N. Grubb*.................... Executive Vice President, Treasurer,
Chief Financial Officer and Director
Robert A. Freece*.................... Senior Vice President and Director
Eliyahu Hurvitz...................... Director
Edward B. Shils...................... Director
Luella B. Slaner..................... Director
Mark I. Solomon...................... Director
Jean-Claude Tine..................... Director
-------------------
* Member of the Executive Committee of the Board of Directors.
Sch D-1
A-3
Exhibit A
FORM OF OPINION OF KRAMER LEVIN NAFTALIS
& FRANKEL LLP, SPECIAL COUNSEL FOR THE
COMPANY TO BE DELIVERED PURSUANT TO
SECTION 5(b)
The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware.
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 International Purchase
Agreement and the U.S. Purchase Agreement.
The Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance and sale to
the Underwriters pursuant to the International Purchase Agreement and the U.S.
Purchase Agreement, respectively, and, when issued and delivered by the Company
pursuant to the International Purchase Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration set forth in the
International Purchase Agreement and the U.S. 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.
The issuance of the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company.
The International Purchase Agreement and the U.S Purchase Agreement have been
duly authorized, executed and delivered by the Company.
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.
The Registration Statement, including any Rule 462(b) Registration Statement,
the Rule 430A Information and the Rule 434 Information, as applicable, the
Prospectuses, excluding the documents incorporated by reference therein, and
each amendment or supplement to the Registration Statement and the Prospectuses,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to which we need
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
The documents incorporated by reference in the Prospectuses (other than the
financial statements and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
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 and the
requirements of the New York Stock Exchange.
The information in the Prospectuses under "Description of Capital Stock,"
"Business," "Certain United States Federal Tax Considerations for Non-United
States Holders of Common Stock" and in the Registration Statement under Item 15,
to the extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects
All descriptions in the Prospectuses of contracts and other documents to which
the Company or its subsidiaries are a party are accurate in all material
respects; to our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto.
No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, (other than under the 1933 Act and the 1933 Act Regulations, which have
been obtained, or as may be required under the securities or blue sky laws of
the various states, as to which we need express no opinion) is necessary or
required under the law of the State of New York or the federal laws of the
United States or under the General Corporation Law of the State of Delaware in
connection with the due authorization, execution and delivery of the
International Purchase Agreement and the U.S. Purchase Agreement or for the
offering, issuance, sale or delivery of the Securities.
The execution, delivery and performance of the International Purchase Agreement
and the U.S. Purchase Agreement and the consummation of the transactions
contemplated in the International Purchase Agreement, the U.S. Purchase
Agreement and in the Registration Statement (including the 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 the International Purchase
Agreement and the U.S. Purchase Agreement do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreements) 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, known to us to which the Company or any subsidiary 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 is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
A-2
government instrumentality or court of the United States or of the State of New
York having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
y) Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated
by reference therein or omitted therefrom, as to which we need make no
statement), 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 that the Prospectuses or
any amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), 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.
z) 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 THE GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(a) 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
would not result in a Material Adverse Effect.
(b) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to the International
Purchase Agreement and the U.S. Purchase Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses); the
shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(c) 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 would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of our
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 any Subsidiary was issued
in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(d) 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
B-1
agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the
transactions contemplated in the International Purchase Agreement
and U.S. Purchase Agreement or the performance by the Company of
its obligations thereunder.
(e) All descriptions in the Prospectuses 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 franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(f) 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.
(g) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency of the United States or
Pennsylvania or, to my knowledge, of any other jurisdiction,
(other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which I
need express no opinion), is necessary or required in connection
with the due authorization, execution and delivery of the
International Purchase Agreement and the U.S. Purchase Agreement
or for the offering, issuance, sale or delivery of the
Securities.
(h) The execution, delivery and performance of the International
Purchase Agreement and the U.S. Purchase Agreement and the
consummation of the transactions contemplated in the
International Purchase Agreement, the U.S. Purchase Agreement and
in the Registration Statement (including the 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 the International Purchase Agreement and the
U.S. Purchase Agreement do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or
B-2
default or Repayment Event (as defined in Section 1(a)(xi) of the
Purchase Agreements) 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,
known to me to which the Company or any subsidiary 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
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
aa) Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated
by reference therein or omitted therefrom, as to which we need make no
statement), 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 that the Prospectuses or
any amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), 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.
bb) 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 its 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-3
Exhibit C
FORM OF OPINION OF
KRAMER LEVIN NAFTALIS & FRANKEL LLP,
COUNSEL FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(C)
(vi) The International Custody Agreement, Notices of Exercise and
Optionholder's Letters of Direction have each been duly executed and delivered
by the Selling Stockholders and constitute valid and binding agreements of the
respective Selling Stockholders in accordance with their terms, except insofar
as enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
creditors' rights generally and except with respect to those provisions of the
International Custody Agreement relating to indemnities or contributions for
liabilities under the Securities Act;
(vii) To our knowledge, the performance by each of the Selling Stockholders
of their respective obligations under the International Purchase Agreement and
the International Custody Agreement and the consummation of each of the
transactions therein contemplated by each of the Selling Stockholders will not
(i) result in the breach of, or constitute a default under, any indenture,
mortgage, deed of trust, trust (constructive or other), loan agreement, lease,
franchise, license or other agreement or instrument to which the applicable
Selling Stockholder is a party or by which its properties are bound, or (ii)
violate any applicable statute, judgment, decree, order, rules or regulation of
any court or governmental body of the United States or the State of New York
having jurisdiction over the applicable Selling Stockholder or any of his
properties;
(viii) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, (other than approvals or consents as may be necessary under state
securities laws, as to which we express no opinion) is necessary or required to
be obtained by any of the Selling Stockholders for the performance by each
Selling Stockholder of its obligations under the International Purchase
Agreement or the International Custody Agreement, or in connection with the
offer, sale or delivery of the Shares being sold to the International Managers
by such Selling Stockholder.
(ix) The International Purchase Agreement has been duly executed and
delivered on behalf of each of the Selling Stockholders.
(x) Each Selling Stockholder is a protected purchaser with respect to the
Shares being sold by him to the International Managers issuable upon exercise of
the options, and has control of such Shares, free of any adverse claim (as the
term "protected purchaser," "control" and "adverse claim" are defined in Article
8 of the Uniform Commercial Code as in effect on the date hereof in the State of
New York) and has full right, power and authority to sell, transfer and deliver
such Shares pursuant to the International Purchase Agreement. Upon delivery of a
certificate or certificates representing the Shares being sold by the Selling
Stockholders, duly endorsed or accompanied by an executed stock power, to the
Custodian on behalf of the International Managers who have purchased such Shares
pursuant to the International Purchase Agreement, assuming such International
Managers have no notice of an adverse claim to such Shares, such International
Managers will be protected purchasers of such Shares.
C-2
Nothing has come to our attention that would lead me to believe
that the information with respect to each Selling Stockholder or the Shares
being sold by such Selling Stockholder to the several International Managers
pursuant to the International Purchase Agreement included in the Registration
Statement or any amendment thereto (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which we need make no statement), 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 that the information
with respect to each Selling Stockholder or the Shares being sold by such
Selling Stockholder to the International Managers pursuant to the International
Purchase Agreement included in the International Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which we make no
statement), at the time the International Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
including 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.
C-2
Exhibit D
FORM OF LOCK-UP FROM DIRECTORS,
OFFICERS OR OTHER STOCKHOLDERS
PURSUANT TO SECTION 5(j)
May 9, 2000
Merrill Lynch International
Bear, Stearns International Limited
Donaldson, Lufkin & Jenrette International
Needham & Company, Inc.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC24 9L4
England
Re: Proposed Public Offering by Vishay Intertechnology, Inc.
--------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
Vishay Intertechnology, Inc., a Delaware corporation (the "Company"),
understands that Merrill Lynch International ("Merrill Lynch"), Bear, Sterns
International Limited, Donaldson, Lufkin & Jenrette International and Needham &
Company, Inc. propose to enter into an International Purchase Agreement (the
"International Purchase Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock, par value
$.10 per share (the "Common Stock"). 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, the undersigned agrees
with each underwriter to be named in the International Purchase Agreement that,
during a period of 90 days from the date of the International Purchase
Agreement, 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
D-1
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise. This nothwithstanding, the undersigned
may transfer such securities by way of gift to a family member or as a
contribution to a charitable institution; provided that the transferee agrees in
writing to be bound by the terms of this letter.
Very truly yours,
Signature:
-----------------------
Print Name:
-----------------------
D-2
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)
[We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations]
gg) (i) in our opinion, the audited financial statements [and the related
financial statement schedules] included or incorporated by reference in the
Registration Statement and the Prospectuses comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
hh) (ii) on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the
unaudited interim [consolidated] financial statements of the Company for the
[three month periods ended _________, 19___ and _________, 19___ , the three
and six month periods ended _________, 19___ and _________, 19___ and the
three and nine month periods ended _________, 19___ and _________, 19___,
included or incorporated by reference in the Registration Statement and the
Prospectuses (collectively, the "10-Q Financials")]19 [, a reading of the
unaudited interim [consolidated] financial statements of the Company for the
_____-month periods ended _________, 19___ and _________, 19___, included in
the Registration Statement and the Prospectuses (the "____-month
financials")]20 [, a reading of the latest available unaudited interim
[consolidated] financial statements of the Company],21 a reading of the
minutes of all meetings of the stockholders and directors of the Company
[and its subsidiaries] and the ___________ and _____________ Committees of
the Company's Board of Directors [and any subsidiary committees] since [day
after end of last audited period], inquiries of certain officials of the
Company [and its subsidiaries] responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"),22
- ----------------------------
19 Include the appropriate dates of the 10-Q Financials.
20 Include if non-10-Q unaudited interim financial statements are included in
the Registration Statement.
21 Include if the most recent unaudited interim financial statements are not
included in the Registration Statement.
22 Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative assurance on
unaudited interim financial information. A review in accordance with SAS
No. 71 will only be performed at the request of the Company and the
accountant's report, if any, related to that review will be addressed only
to the Company. Many companies have a SAS No. 71 review performed in
connection with the preparation of their 10-Q financial statements. See
Codification of Statements on Auditing Standards, AU ss. 722 for a
description of the procedures that constitute such a review. The comfort
letter itself should recite that the review was performed and a copy of the
report, if any, should be attached to the comfort letter. Any report issued
pursuant to SAS No. 71 that is mentioned in the Registration Statement
should also be included in the Registration Statement as an exhibit. If a
review in accordance with SAS No. 71 has not and will not be performed by
the accountants, they should be prepared to
with respect to the [description of relevant periods]23 and such other
inquiries and procedures as may be specified in such letter, nothing came
to our attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectuses do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration Statement and the
Prospectuses for them to be in conformity with generally accepted accounting
principles;]24
[( ) the _____-month financials included in the Registration
Statement and the Prospectuses do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made to the
_____-month financials included in the Registration Statement and the
Prospectuses for them to be in conformity with generally accepted accounting
principles;]25
- -------------------------
perform certain agreed-upon procedures on the interim financial information and
to report their findings thereon in the comfort letter. See SAS, No. 75 for a
discussion of reports related to the accountant's performance of agreed-upon
procedures. Any question as to whether a review in accordance with SAS No. 71
will be performed by the accountants should be resolved early.
23 The relevant periods include all unaudited interim condensed consolidated
financial statements included or incorporated by reference in the
Registration Statement.
24 Include if the 10-Q Financials are incorporated by reference in the
Registration Statement.
25 Include if non quarterly, unaudited interim financial statements, not just
selected unaudited data, are included in the Registration Statement.
( ) at [_________, 19___ and at]26 a specified date not more than
five days27 prior to the date of this Agreement, there was any change in the
___________ of the Company [and its subsidiaries] or any decrease in the
__________ of the Company [and its subsidiaries] or any increase in the
__________ of the Company [and its subsidiaries,]28 in each case as compared
with amounts shown in the latest balance sheet included in the Registration
Statement, except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur; or
( ) [for the period from _________, 19___ to _________, 19___ and
]29 for the period from _________, 19___ to a specified date not more than five
days prior to the date of this Agreement, there was any decrease in _________,
__________ or ___________,30 in each
- -------------------------------
26 Include, and insert the date of most recent balance sheet of the Company,
if those statements are more recent than the unaudited interim financial
statements included in the Registration Statement.
27 According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the Underwriting Agreement rather than
five business days prior to such date. However, in unusual circumstances,
five business days may be used.
28 The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should
be included rests with the banker, comfort is routinely requested for
certain balance sheet items, including long-term debt, stockholders'
equity, capital stock and net current assets.
29 Include, and insert dates to describe the period from the date of the most
recent financial statements in the Registration Statement to the date of
the most recent unaudited interim financial statements of the Company, if
those dates are different. Regardless of whether this language is inserted
or not, the period including five days prior to the date of the
Underwriting Agreement should run from the date of the last financial
statement included in the Registration Statement, not from the later one
that is not included in the Registration Statement.
30 The blanks should be filled in with significant income statement items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should
be included rests with the banker, comfort is routinely requested for
certain income statement items, including net sales, total and per share
amounts of income before extraordinary items and of net income.
case as compared with the comparable period in the preceding year, except in
each case for any decreases that the Registration Statement discloses have
occurred or may occur;
ii) (iii) based upon the procedures set forth in clause (ii) above and a reading
of the [Selected Financial Data] included in the Registration Statement [and
a reading of the financial statements from which such data were derived],31
nothing came to our attention that caused us to believe that the [Selected
Financial Data] included in the Registration Statement do not comply as to
form in all material respects with the disclosure requirements of Item 301
of Regulation S-K of the 1933 Act [, that the amounts included in the
[Selected Financial Data] are not in agreement with the corresponding
amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement from which certain of such data were derived are not
in conformity with generally accepted accounting principles];32
jj) (iv) we have compared the information in the Registration Statement under
selected captions with the disclosure requirements of Regulation S-K of the
1933 Act and on the basis of limited procedures specified herein. nothing
came to our attention that caused us to believe that this information does
not comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation S-K;
kk) [(v) based upon the procedures set forth in clause (ii) above, a reading of
the unaudited financial statements of the Company for [the most recent
period] that have not been included in the Registration Statement and a
review of such financial statements in accordance with SAS 71, nothing came
to our attention that caused us to believe that the unaudited amounts for
_____________ for the [most recent period] do not agree with the amounts set
forth in the unaudited consolidated financial statements for those periods
or that such unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
[consolidated] financial statements;]33
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31 Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement.
32 In unusual circumstances, the accountants may report on "Selected Financial
Data" as described in SAS No. 42, Reporting on Condensed Financial
Statements and Selected Financial Data, and include in their report in the
Registration Statement the paragraph contemplated by SAS No. 42.9. This
situation may arise only if the Selected Financial Data do not include
interim period data and the five-year selected data are derived entirely
from financial statements audited by the auditors whose report is included
in the Registration Statement. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the Registration
Statement includes the additional language prescribed KL2:2040809.1
33 This language should be included when the Registration Statement includes
earnings or other data for a period after the date of the latest financial
statements in the Registration Statement, but the unaudited interim
financial statements from which the earnings or other data is derived is
not included in the Registration Statement. The blank should be filled in
with a description of the financial statement item(s) included.
ll) [(vi)] we are unable to and do not express any opinion on the [Pro Forma
Combining Statement of Operations] (the "Pro Forma Statement") included in
the Registration Statement or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however, for
purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS 71] of
the financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for their
determination of the pro forma adjustments and whether the Pro Forma Statement
complies as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention that caused us to
believe that the Pro Forma Statement included in the Registration Statement does
not comply as to form in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;34 and
mm) [(vii)]in addition to the procedures referred to in clause (ii) above, we
have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and
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34 If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro
forma financial statements. See Example O of SAS No. 72.
financial information appearing in the Registration Statement, which are
specified herein, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and financial
records of the Company;35 and
nn) [(viii)in addition, we [comfort on a financial forecast that is included in
the Registration Statement]36.
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35 This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement for which comfort may
be given, including (but not limited to) amounts appearing in the
Registration Statement narrative and other summary financial data appearing
in tabular form (e.g. the capitalization table).
36 Accountants' services with respect to a financial forecast may be in one of
three forms: an examination of the forecast, a compilation of the forecast
or the application of agreed-upon procedures to the forecast. If the
accountant is to perform an examination of the forecast included in the
Registration Statement, delivery of the related report should be treated
separately in Section 5(f) as follows (remember to change subsequent
letters accordingly):
(f) At the time that this Agreement is executed by the Company, you
shall have received from ______________________ a report, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such report for each of the other Underwriters, stating that, in their
opinion, the forecasted financial statements for the [relevant period or
periods] included in the Registration Statement are presented in conformity with
guidelines for presentation of a forecast established by the AICPA, and that the
underlying assumptions provide a reasonable basis for management's forecast.
If the accountant is to perform a compilation of the forecasted financial
statements included in the Registration Statement, delivery of the related
report should be treated separately in Section 5(f) as follows:
(f) At the time that this Agreement is executed by the Company, you
shall have received from _________________ a report, dated such date, in form
and substance satisfactory to you, together with signed or reproduced copies of
such report for each of the other Underwriters, stating that they have compiled
the forecasted financial statements for the [relevant period or periods]
included in the Registration Statement in accordance with the guidelines
established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a forecast
included in the Registration Statement, SAS No. 72 requires that the accountant
first prepare a compilation report with respect to the forecast and attach that
report to the comfort letter. The accountant may then report on specific
procedures performed and findings obtained.