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Exhibit 1.2
1,875,000 Shares
LEAR SEATING CORPORATION
Common Stock
International Underwriting Agreement
, 1994
Lehman Brothers International (Europe)
Kidder, Peabody International Limited
Morgan Stanley & Co. International Limited
Wertheim Schroder International Limited
As Lead Managers for each of
the several International Managers
named in Schedule I hereto,
c/o LEHMAN BROTHERS INTERNATIONAL (EUROPE)
One Broadgate
London EC2M 7HA
ENGLAND
Dear Sirs:
Lear Seating Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell and FIMA Finance Management Inc. (the "Selling
Stockholder") proposes to sell to the several International Managers named in
Schedule I hereto (the "International Managers") an aggregate of 1,875,000
shares (the "Firm Shares") of Common Stock, $.01 par value (the "Common
Stock"), of the Company. In addition, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, the Company
proposes to grant to the U.S. Underwriters and the International Managers (as
defined below) an option to purchase up to an aggregate of 937,500 additional
shares (the "Option Shares") of Common Stock. The Firm Shares and any Option
Shares purchased pursuant to this Agreement are herein called the "Shares".
It is understood that the Company and the Selling Stockholder are
concurrently entering into a U.S. Underwriting Agreement dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale by the Company and
the Selling Stockholder of an aggregate of 7,500,000
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shares of Common Stock through arrangements with certain underwriters in the
United States (the "U.S. Underwriters"), for whom Lehman Brothers Inc., Kidder
Peabody & Co. Incorporated, Morgan Stanley & Co. Incorporated and Wertheim
Schroder & Co. Incorporated are acting as representatives (the
"Representatives"). All shares of Common Stock to be offered by the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement are herein called the
"U.S. Shares"; the U.S. Shares and the Shares, collectively, are herein called
the "Underwritten Shares". As specified in Section 3, the respective closings
under this Agreement and the U.S. Underwriting Agreement are hereby expressly
made conditional on one another.
The Company and the Selling Stockholder also understand that the U.S.
Underwriters and the International Managers have entered into an agreement (the
"Agreement Between U.S. Underwriters and International Managers") contemplating
the coordination of certain transactions between the U.S. Underwriters and the
International Managers and that, pursuant thereto and subject to the conditions
set forth therein, the U.S. Underwriters may purchase from the International
Managers a portion of the Shares or sell to the International Managers a
portion of the U.S. Shares. The Company and the Selling Stockholder understand
that any such purchases and sales between the U.S. Underwriters and the
International Managers shall be governed by the Agreement Between U.S.
Underwriters and International Managers and shall not be governed by the terms
of this Agreement or the U.S. Underwriting Agreement.
This is to confirm the agreement concerning the purchase of the
Shares from the Company and the Selling Stockholder by the International
Managers.
The following terms as used in this Agreement shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day on which the New York Stock
Exchange is open for trading.
"Commission" shall mean the Securities and Exchange Commission.
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"Effective Date" shall mean the date of the Effective Time.
"Effective Time" shall mean the date and the time as of which the
Registration Statement, or the most recent post- effective amendment thereto,
if any, was declared effective by the Commission (or, if the Company will next
file with the Commission an amendment to the Registration Statement as
contemplated by clause (i) of the first paragraph of Section 1, the date and
time as of which the Registration Statement shall be declared effective).
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"International Prospectus" shall mean a Prospectus relating to the
International Shares which are to be offered and sold outside the United States
to persons other than U.S. Persons.
"Preliminary Prospectuses" shall mean each prospectus included in the
Registration Statement, or any amendment thereof, before the Effective Date,
each prospectus filed with the Commission by the Company with the consent of
the Representatives pursuant to Rule 424(a) and each prospectus included in the
Registration Statement at the Effective Time that omits Rule 430A Information.
"Prospectuses" shall mean the forms of prospectuses relating to the
Underwritten Shares, as first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, the forms of final
prospectuses included in the Registration Statement at the Effective Time.
"Registration Statement" shall mean the registration statement
referred to above, as amended at the Effective Time. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective Time
as provided by Rule 430A.
"Rule 424" and "Rule 430A" shall refer to such rules under the Act.
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"Rule 430A Information" shall mean information with respect to the
Underwritten Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rules and Regulations" shall mean the rules and regulations in
effect at any relevant time adopted by the Commission under the Act or the
Exchange Act.
"Subsidiary" and "Significant Subsidiary" shall have the meanings
assigned in Rule 405 of the Rules and Regulations. As used in reference to the
Company, "subsidiary" shall mean a Subsidiary of the Company.
"U.S. Person" shall mean any resident or national of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States or any estate or trust the income of which
is subject to United States income taxation regardless of the source of its
income (other than the foreign branch of any U.S. Person), and includes any
United States branch of a person other than a U.S. Person; and "United States"
shall mean the United States of America (including the states thereof and the
District of Columbia) and its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Prospectus" shall mean a Prospectus relating to the Shares
which are to be offered and sold in the United States or to U.S. Persons.
1. Representations and Warranties of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-1 (File No. [33- ]) with
respect to the Underwritten Shares has been prepared by the Company in
conformity with the requirements of the Act and the Rules and Regulations
thereunder and has been filed with the Commission under the Act. Copies of
such registration statement as amended to date have been delivered by the
Company to you as the Lead Managers of the International Managers. The Company
will next file with the Commission one of the following: (i) prior to
effectiveness of such registration statement, a further amendment to such
registration statement, including forms of final prospectuses or (ii) after
effectiveness of such registration statement, final prospectuses in accordance
with Rules 430A and 424(b)(1) or (4).
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(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with Rule
424(b) and on each Closing Date (as defined in Section 4) the Prospectuses (and
any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations. The Company
has included in the Registration Statement, as amended at the Effective Date,
all information required by the Act and the Rules and Regulations thereunder to
be included in the Prospectuses with respect to the Underwritten Shares and the
offering thereof, and the Prospectuses, when filed with the Commission, did or
will contain all Rule 430A Information, together with all other such required
information, with respect to the Underwritten Shares and the offering thereof
and, except to the extent the Lead Managers shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectuses) as the Company
has advised you, prior to the Execution Time, will be included or made therein.
The Commission has not issued any stop order preventing or suspending the use
of any Preliminary Prospectus or the Prospectuses or the effectiveness of the
Registration Statement, and no proceeding for any such purpose has been
initiated or threatened by the Commission.
(c) On the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectuses
did not or will not, and on the date of any filing pursuant to Rule 424(b) and
on each Closing Date, the Prospectuses (together with any supplements thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
the Company makes no representation or warranty as to information contained in
or omitted from the Registration Statement or the Prospectuses in reliance
upon, and in conformity with, written information furnished to the Company by
you, or by any International Manager through you, specifically for inclusion
therein.
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(d) Neither the Commission nor, to the knowledge of the Company, the
"blue sky" or securities authority of any jurisdiction has issued an order (a
"Stop Order") suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectuses, the
Prospectuses, the Registration Statement, or any amendment or supplement
thereto, refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Shares, nor, to the
knowledge of the Company, has any of such authorities instituted or threatened
to institute any proceeding with respect to a Stop Order in any jurisdiction in
which the Shares are sold.
(e) Each of the Company and its subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation, with full power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and
permits of and from, all Federal, state, local, and other governmental and
foreign authorities, to own, lease, license, and use its properties and assets
and to carry on its business in the manner described in the Prospectus except
where such failure will not have a material adverse effect on the Company and
its subsidiaries taken as a whole. Except as described in the Registration
Statement and Prospectuses, each such consent, authorization, approval, order,
license, certificate and permit is valid and in full force and effect, and
there is no proceeding pending, or to the knowledge of the Company, threatened,
which might lead to the revocation, termination, suspension or nonrenewal of
any such consent, authorization, approval, order, license, certificate or
permit. Each of the Company and its subsidiaries is duly qualified to do
business and is in good standing in every jurisdiction in which its ownership,
leasing, licensing, or use of property and assets or the conduct of its
business makes such qualification necessary, except in those jurisdictions
where failure to qualify or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(f) The Company has an authorized capitalization as set forth in the
Registration Statement. Except as described or otherwise disclosed in the
Prospectuses, each outstanding share of Common Stock and each outstanding share
of capital stock of the Company's subsidiaries is duly authorized, validly
issued, fully paid and nonassessable, has not been issued and is not owned or
held in violation of
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any preemptive rights of stockholders, and, in the case of the Company's
subsidiaries, is owned of record and beneficially by the Company (except for
directors' qualifying shares), or its subsidiaries free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders' agreements
and voting trusts. The Company's capital stock conform to the statements in
relation thereto contained in the Prospectuses. There is no commitment, plan
or arrangement to issue, and no outstanding option, warrant or other right
calling for the issuance of, any share of capital stock of the Company or the
Company's subsidiaries to any person or any security or other instrument which
by its terms is convertible into, exercisable for, or exchangeable for capital
stock of the Company or the Company's subsidiaries, except as described or
otherwise disclosed in the Prospectuses. There is outstanding no security or
other instrument which by its terms is convertible into or exchangeable for
capital stock of the Company or any of their subsidiaries, except as described
or otherwise disclosed in the Prospectuses.
(g) Other than as described in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(h) Neither the Company nor any of its subsidiaries has sustained,
since the date of the Company's Report on Form 10-K for the six month period
ended December 31, 1993, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectuses; and,
since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectuses.
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(i) Except as described in the Registration Statement and the
Prospectuses, neither the Company nor any of its subsidiaries have entered into
any material transaction or incurred any material liability or obligation,
contingent or otherwise, other than in the ordinary course of business.
(j) Neither the Company nor any of its subsidiaries is now or is
expected by the Company or its subsidiaries to be in violation or breach of, or
in default with respect to, any provision of any contract, agreement,
instrument, lease, or license to which the Company or any of its subsidiaries
is a party, the effect of which would materially adversely affect the financial
condition, results of operations, business, assets, liabilities or prospects of
the Company and its subsidiaries taken as a whole. Each such contract,
agreement, instrument, lease or license (i) is in full force, (ii) assuming the
correctness of (iii) below, is the legal, valid, and binding obligation of the
Company or its subsidiaries and is enforceable as to the Company or its
subsidiaries, as the case may be, in accordance with its terms, except that
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the enforcement of
creditors' rights generally and by general equity principles and (iii) to the
Company's knowledge, is the legal, valid and binding obligation of the other
parties thereto and is enforceable as to each of them in accordance with its
terms, except that enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by general equity principles.
Each of the Company and its subsidiaries enjoys peaceful and undisturbed
possession under all leases and licenses under which it is operating.
(k) The Underwritten Shares being sold by the Company have been duly
and validly authorized and, when duly countersigned by the Company's Transfer
Agent and Registrar and issued and delivered in accordance with the provisions
of this Agreement and the U.S. Underwriting Agreement, as described in the
Registration Statement, will be duly and validly issued, fully paid and
nonassessable; the Underwritten Shares conform to the description of the Common
Stock in the Prospectuses; and the Underwritten Shares have been approved for
listing on the New York Stock Exchange, subject to official notice of issuance.
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(l) The execution, delivery and performance of this Agreement and
the U.S. Underwriting Agreement and the consummation of the transactions
contemplated hereby and thereby, the issuance and sale of the Shares and the
amendment to the Certificate of Incorporation of the Company and the By-laws of
the Company described in the Prospectuses, will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
Certificate of Incorporation or the By-laws, in each case as amended, of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets;
and no consent, approval, authorization, order, registration, filing or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Underwritten Shares or the consummation of the
other transactions contemplated by this Agreement or the U.S. Underwriting
Agreement, except the registration under the Act of the Underwritten Shares,
and such consents, approvals, authorizations, registrations, filings or
qualifications as may be required under state securities or Blue Sky laws or as
may be required by the laws of any country other than the United States in
connection with the purchase and distribution of the Underwritten Shares by the
U.S. Underwriters and the International Managers.
(m) The Company will not, during the period of 180 days after the
date hereof except pursuant to this Agreement or the U.S. Underwriting
Agreement or as contemplated by the Prospectuses, offer, sell or otherwise
dispose of any common stock or securities convertible into or exchangeable or
exercisable for such common stock of the Company, directly or indirectly,
without the prior written consent of the Lead Managers.
(n) Except as may otherwise be disclosed in or contemplated by the
Prospectuses, since the date as of which information is given in the
Prospectuses, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
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liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(o) Any contract, agreement, instrument, lease or license required
to be described in the Registration Statement or the Prospectuses has been
properly described therein, and any contract, agreement, instrument, lease or
license required to be filed as an exhibit to the Registration Statement has
been filed with the Commission as an exhibit to or has been incorporated as an
exhibit by reference into the Registration Statement.
(p) There is no labor strike or work stoppage or lockout actually
pending, imminent or threatened against the Company or any of its subsidiaries
which would have a material adverse effect on the consolidated financial
condition, results of operations, business, assets, liabilities or prospects of
the Company and its subsidiaries taken as a whole.
(q) Except as set forth in the Registration Statement and except as
would not materially and adversely affect the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole, (i) the Company is not in
violation of any applicable Federal, state or local environmental law or any
applicable order of any governmental authority with respect thereto; (ii) the
Company is not in violation of or subject to any existing, or pending or, to
the Company's knowledge, threatened action, suit, investigation, inquiry or
proceeding by any governmental authority nor is the Company subject to any
remedial obligations under any applicable Federal, state or local environmental
law; (iii) the Company and its subsidiaries are in compliance with all permits
or similar authorizations, if any, required to be obtained or filed in
connection with their operations including, without limitation, emissions,
discharges, treatment, storage, disposal or release of a Hazardous Material
into the environment except where any noncompliance could not reasonably be
expected to have a material adverse effect on the operations of the Company and
its subsidiaries; and (iv) to the knowledge of the Company and its
subsidiaries, after appropriate inquiry, no Hazardous Materials have been
disposed of or released by the Company or its subsidiaries on or to the
Company's or its subsidiaries' property, except in accordance with
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applicable environmental laws. The term "Hazardous Material" means any oil
(including petroleum products, crude oil and any fraction thereof), chemical,
contaminant, pollutant, solid or hazardous waste, or Hazardous Substance (as
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act and regulations thereunder), that is regulated
as toxic or hazardous to human health or the environment under any Federal,
state or local environmental law.
(r) Except with respect to taxable periods commencing before the
taxable period ended June 30, 1989, as to which no representation is made, the
Company has filed all Federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes shown to be
due with respect to the taxable periods covered by such returns, and no tax
deficiency has been assessed, nor does the Company have any knowledge of any
tax deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a material adverse effect on
the consolidated financial condition, results of operations, business, assets,
liabilities or prospects of the Company and its subsidiaries taken as a whole.
(s) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(t) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement present
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
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(u) Arthur Andersen & Co., who have certified certain financial
statements of the Company, and Coopers & Lybrand, who have certified certain
financial statements of the North American Business of Ford Motor Company (as
defined in the Prospectuses), and whose reports appear in the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(v) There is no litigation or governmental proceeding pending or, to
the knowledge of the Company or any of its subsidiaries, threatened against the
Company or any of its subsidiaries which could reasonably be expected to result
in any material adverse change in the consolidated financial condition, results
of operations, business, assets, liabilities or prospects of the Company or any
of its subsidiaries or which affects the transactions contemplated by this
Agreement and the Prospectuses or which is required to be disclosed in the
Registration Statement and the Prospectuses, which is not disclosed and
correctly summarized therein.
(w) The filing of the Registration Statement has been duly
authorized by the Company.
(x) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all items
of real and personal property which are material to the business of the Company
and its subsidiaries taken as a whole, free and clear of any lien, claim,
encumbrance, preemptive rights or any other claim of any other third party
which might materially interfere with the conduct of the business of the
Company and its subsidiaries taken as a whole. The Company and its
subsidiaries are in material compliance with all applicable laws, rules and
regulations, except where such failure to comply would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(y) The Company has not taken, and agrees that it will not take,
directly or indirectly, any action that could reasonably be expected to cause
or result in stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Shares.
(z) The Company has requested that the Underwriters reserve up to
300,000 Shares to be sold to certain employees of the Company and its
subsidiaries. The Company has further requested that such reserved Shares be
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reserved from all Shares to be sold by it and not from Shares to be sold by the
Selling Stockholder.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder, represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately prior to the First
Closing Date (as defined in Section 4) the Selling Stockholder will have, good
and valid title to the Underwritten Shares to be sold by the Selling
Stockholder hereunder and under the U.S. Underwriting Agreement on such date,
free and clear of all liens, encumbrances, equities or claims; and upon
delivery of such Underwritten Shares and payment therefor pursuant hereto and
thereto, good and valid title to such Underwritten Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the several U.S.
Underwriters and the International Managers.
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement") with Marc E. Perlmutter, Esq. and Richard
S. Borisoff, Esq. as custodians (each a "Custodian"), for delivery under this
Agreement and under the U.S. Underwriting Agreement, certificates in negotiable
form (with signature guaranteed by a commercial bank or trust company having an
office or correspondent in the United States or a member firm of the New York
or American Stock Exchanges) representing the Underwritten Shares to be sold by
the Selling Stockholder hereunder and under the U.S. Underwriting Agreement.
(c) The Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (each, a "Power of Attorney") appointing the
Custodian and one or more other persons, as attorneys-in-fact, with full power
of substitution, and with full authority (exercisable by any one or more of
them) to execute and deliver this Agreement and the U.S. Underwriting Agreement
and to take such other action as may be necessary or desirable to carry out the
provisions hereof or thereof on behalf of the Selling Stockholder.
(d) The Selling Stockholder has full right, power and authority to
enter into and perform under this Agreement, the U.S. Underwriting Agreement,
the Power of Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the U.S. Underwriting
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Agreement, the Power of Attorney and the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets of the Selling
Stockholder is subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or the By-laws or any
partnership agreement of the Selling Stockholder or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets of the
Selling Stockholder; and no consent, approval, authorization, order, filing or
registration of or with, any court or governmental agency or body is required
for the execution, delivery and performance of this Agreement, the U.S.
Underwriting Agreement, the Power of Attorney or the Custody Agreement by the
Selling Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby, except the registration under the
Act of the Underwritten Shares, and such consents, approvals, authorizations,
registrations, filings or qualifications as may be required under state
securities or Blue Sky laws or as may be required by the laws of any country
other than the United States in connection with the purchase and distribution
of the Shares by the International Managers.
(e) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectuses, the Prospectuses or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by the Selling Stockholder
specifically for use therein, such Preliminary Prospectuses did, and the
Registration Statement did or will, and the Prospectuses and any amendments or
supplements to the Registration Statement or the Prospectuses will, when they
become effective or are filed with the Commission, as the case may be, not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(f) The Selling Stockholder has no reason to believe that the
representations and warranties of the
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Company contained in Section 1 are not true and correct, is familiar with the
Registration Statement and has no knowledge of any material fact, condition or
information not disclosed in the Prospectuses or any supplement thereto which
has adversely affected or may adversely affect the business of the Company or
any of its subsidiaries; and the sale of the Underwritten Shares by the Selling
Stockholder pursuant hereto and pursuant to the U.S. Underwriting Agreement is
not prompted by any information concerning the Company or any of its
subsidiaries which is not set forth in the Prospectuses or any supplement
thereto.
(g) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Underwritten Shares.
3. Purchase of the Shares by the International Managers. (a)
Subject to the terms and conditions and upon the basis of the representations
and warranties herein set forth, the Company agrees to issue and sell 1,250,000
shares of the Firm Shares and the Selling Stockholder agrees to sell 625,000
shares of Firm Shares, to the International Managers and each of the
International Managers agrees, severally and not jointly, to purchase, at a
price of $[ ] per Share, the number of Firm Shares set forth opposite such
International Manager's name in Schedule I hereto. Each International Manager
shall be obligated to purchase from the Company and from the Selling
Stockholder that number of the Firm Shares which represents the same proportion
of the number of the Firm Shares to be sold by the Company and by the Selling
Stockholder, respectively, as the number of the Firm Shares set forth opposite
the name of such International Manager in Schedule I represents of the total
number of the Firm Shares to be purchased by all of the Underwriters pursuant
to this Agreement. The respective purchase obligations of the International
Managers with respect to the Firm Shares shall be rounded among the
International Managers to avoid fractional shares, as the Lead Managers may
determine. The International Managers agree to offer the Firm Shares to the
public as set forth in the International Prospectus. Each International
Manager agrees that, except to the extent permitted by the Agreement Between
U.S. Underwriters and International Managers, it will not offer any of the
Shares inside the United States.
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The obligations of the Company hereunder to issue and sell any Shares
and of the Selling Stockholder to sell any Shares, and the obligations of the
International Managers to purchase the Shares, are subject to the closing of
the sale and purchase of the U.S. Shares (excluding the U.S. Shares issuable
upon exercise of the U.S. Underwriters' over-allotment option) pursuant to the
U.S. Underwriting Agreement.
(b) The Company hereby grants to the International Managers an
option to purchase from the Company, solely for the purpose of covering
over-allotments in the sale of Firm Shares, up to 187,500 shares of the Option
Shares for a period of 30 days from the date hereof at the purchase price per
Share set forth above. Option Shares shall be purchased from the Company for
the accounts of the International Managers, severally and not jointly, in
proportion to the number of Firm Shares set forth opposite such International
Manager's name in Schedule I hereto, except that the respective purchase
obligations of each International Manager shall be adjusted by the Lead
Managers so that no International Manager shall be obligated to purchase Option
Shares other than in 100-share quantities.
4. Delivery of and Payment for Shares. Delivery of certificates for
the Firm Shares, and certificates for the Option Shares, if the option to
purchase the same is exercised on or before the third Business Day prior to the
First Closing Date, shall be made at the offices of Lehman Brothers Inc., 388
Greenwich Street (Cashier's Window, Main Level), New York, New York 10013 (or
such other place as mutually may be agreed upon), at 10:00 A.M., New York City
time, on the fifth full Business Day following the date of this Agreement or on
such later date as shall be determined by you and the Company (the "First
Closing Date").
The option to purchase Option Shares granted in Section 3 hereof may
be exercised during the term specified therein by written notice to the Company
from the Lead Managers. Such notice shall set forth the aggregate number of
Option Shares as to which the option is being exercised and the time and date,
not earlier than either the First Closing Date or the second Business Day after
the date on which the option shall have been exercised nor later than the fifth
Business Day after the date of such exercise, as determined by the
Representatives, when the Option Shares are to be delivered (each an "Option
Closing Date"). Delivery and payment for such Option Shares shall be made at
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the offices set forth above for delivery and payment of the Firm Shares. (The
First Closing Date and each Option Closing Date are herein individually
referred to as a "Closing Date" and collectively referred to as the "Closing
Dates".)
Delivery of certificates for the Shares shall be made by or on behalf
of the Company and the Selling Stockholder to you, for the respective accounts
of the International Managers, against payment of the purchase price therefor
by certified or official bank check payable in New York Clearing House (next
day) funds to the order of the Company and the Selling Stockholder. The
certificates for the Shares shall be registered in such names and denominations
as you shall have requested at least two full Business Days prior to the
applicable Closing Date, and shall be made available for checking and packaging
in New York, New York, or such other location as may be designated by you at
least one full Business Day prior to such Closing Date. Time shall be of the
essence, and delivery of certificates for the Shares at the time and place
specified in this Agreement is a further condition to the obligations of each
International Manager.
5. Qualified Independent Underwriter.
(a) The Company hereby confirms its engagement of the services of
Morgan Stanley & Co. Incorporated (the "Independent Underwriter") as, and the
Independent Underwriter hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Section 2(1) of Schedule E ("Schedule E") of the By-laws of the National
Association of Securities Dealers, Inc. ("the NASD") with respect to the
offering and sale of the Underwritten Shares.
(b) The Independent Underwriter hereby represents and warrants to,
and agrees with, the Company and the other Underwriters that with respect to
the offering and sale of the Underwritten Shares as described in the
Prospectuses:
(i) the Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of Section 2(1) of Schedule E;
(ii) the Independent Underwriter has participated in the preparation
of the Registration Statement and
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the Prospectuses and has exercised the usual standards of "due diligence"
in respect thereto;
(iii) the Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) based upon, among other factors, the information set forth in
the Prospectuses and its review of such other documents and the taking of
such other actions as the Independent Underwriter, in its sole
discretion, has deemed necessary or appropriate for the purposes of
delivering its recommendation hereunder, the Independent Underwriter
recommends, as of the date of the execution and delivery of this
Agreement, that the price for the Underwritten Shares not exceed the
amount set forth in Section 3 of this Agreement, which price should in no
way be considered or relied upon as an indication of the value of the
Underwritten Shares; and
(v) the Independent Underwriter will furnish to the other
Underwriters on each Closing Date a letter, dated the date of delivery
thereof, in form and substance satisfactory to such Underwriters, to the
effect of clauses (i) through (iv) above.
(c) The Company, the Independent Underwriter and the other
Underwriters agree to comply in all material respects with all of the
requirements of Schedule E applicable to them in connection with the offering
and sale of the Underwritten Shares. The Company agrees to cooperate with the
Underwriters, including the Independent Underwriter, to enable the Underwriters
to comply with Schedule E and the Independent Underwriter to perform the
services contemplated by this Agreement.
(d) The Company agrees promptly to reimburse the Independent
Underwriter for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred in connection with this Agreement and the services
to be rendered as Independent Underwriter hereunder.
(e) The Independent Underwriter hereby consents to the references to
it as set forth under the caption "Underwriting" in the Prospectuses.
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6. Covenants. The Company agrees with each International Manager
that:
(a) The Company shall use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendments thereto
to become effective. The Company shall advise you promptly of the filing of
any amendment to the Registration Statement or any supplement to any Prospectus
and, upon notification from the Commission that the Registration Statement or
any such amendment has become effective, shall so advise you promptly (in
writing, if requested). If the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of any Prospectus is otherwise
required under Rule 424(b), the Company will cause such Prospectus, properly
completed, and any supplement thereto to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) in the manner and within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company shall notify you promptly of any request by
the Commission for any amendment of or supplement to the Registration Statement
or any Prospectus or for additional information; the Company shall prepare and
file with the Commission, promptly upon your request, any amendments or
supplements to the Registration Statement or the International Prospectus
which, in your reasonable opinion, may be necessary or advisable in connection
with the distribution of the Shares; and the Company shall not file any
amendment or supplement to the Registration Statement or the International
Prospectus, which filing is not consented to by you after reasonable notice
thereof. The Company shall advise you promptly of the issuance by the
Commission or any state or other governmental or regulatory body of any stop
order or other order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary Prospectus or
Prospectus or suspending the qualification of the Shares for offering or sale
in any jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the issuance of
any stop order or other such order and, should a stop order or other such order
be issued, to obtain as soon as possible the lifting thereof.
(b) The Company shall furnish to each of the Lead Managers and to
counsel for the International Managers a signed copy of the Registration
Statement as originally filed and each amendment thereto filed with the
Commission,
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including all consents and exhibits filed therewith, and shall furnish to the
International Managers such number of conformed copies of the Registration
Statement, as originally filed and each amendment thereto (excluding exhibits
other than this Agreement), any Preliminary Prospectus, the International
Prospectus and all amendments and supplements to any of such documents, in each
case as soon as available and in such quantities as the Lead Managers may from
time to time reasonably request.
(c) Within the time during which the Prospectuses relating to the
Underwritten Shares are required to be delivered under the Act, the Company
shall comply with all requirements imposed upon it by the Act, the Exchange Act
and the Rules and Regulations so far as is necessary to permit the continuance
of sales of or dealings in the Underwritten Shares as contemplated by the
provisions hereof and by the Prospectuses. If during such period any event
occurs as a result of which the International Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the International
Prospectus to comply with the Act or the Exchange Act or the Rules and
Regulations, the Company shall promptly notify you and, subject to the
penultimate sentence of paragraph (a) of this Section 6, shall amend the
Registration Statement or supplement the International Prospectus or file such
document (at the expense of the Company) so as to correct such statement or
omission or to effect such compliance.
(d) The Company shall take or cause to be taken all necessary action
and furnish to whomever you may direct such information as may be required in
qualifying the Shares (and any U.S. Shares that may be sold to the
International Managers by the U.S. Underwriters) for offer and sale under the
state securities or Blue Sky laws of such jurisdictions as you shall designate
and to continue such qualifications in effect for as long as may be necessary
for the distribution of the Shares (and such U.S. Shares); except that in no
event shall the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process.
(e) The Company shall furnish to you, on or prior to the date of
this Agreement, a letter or letters, in form
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and substance satisfactory to counsel for the International Managers, pursuant
to which each executive officer and director of the Company; Lehman Brothers
Merchant Banking Portfolio Partnership L.P., Lehman Brothers Capital Partners
II, L.P., Lehman Brothers Offshore Investment Partnership L.P. and Lehman
Brothers Offshore Investment Partnership--Japan L.P.; the Selling Stockholder
and the Management Investors (as defined in the Amended and Restated
Stockholders Agreement dated as of September 27, 1991), shall agree not to
offer for sale, sell or otherwise dispose of any shares of Common Stock (other
than the Underwritten Shares) of any securities convertible or exchangeable or
exercisable for such common stock during the 180 days following the date of the
Prospectuses except with your prior written consent.
(f) Whether or not the transactions contemplated in this Agreement
are consummated, to pay or cause to be paid the costs incident to the
authorization, issuance, sale and delivery of the Shares and any expenses or
taxes (including stock transfer taxes) payable in that connection; the costs
incident to the preparation, printing and filing under the Act of the
Registration Statement and any amendments and exhibits thereto; the costs of
distributing the Registration Statement as originally filed and each amendment
and post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, each Prospectus and any amendment or supplement to each Prospectus,
all as provided in this Agreement, the costs of printing this Agreement, the
U.S. Underwriting Agreement and other underwriting documents, including, but
not limited to, Underwriters' Questionnaires, Underwriters' Powers of Attorney,
Blue Sky Memoranda, Legal Investment Surveys, Agreements Among Underwriters,
Selected Dealer Agreements, the Agreement Between U.S. Underwriters and
International Managers, the Agreements Among International Managers and the
International Selling Agreements; the filing fee of the NASD; the reasonable
fees and expenses of qualifying the Shares under the securities laws of the
several jurisdictions as provided in this paragraph and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality of the
Shares as an investment, if any (including fees and expenses of counsel to the
International Managers in connection therewith); the cost of printing
certificates; the cost and charges of any transfer agent or registrar; the cost
of delivering and distributing the Custody Agreements and the Powers of
Attorney and all other costs and expenses incident to the performance of the
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obligations of the company and the obligations of the Selling Stockholder
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as provided in this Section, Section 9 and
Section 10 hereof, the Selling Stockholder shall pay all its own costs and
expenses, including the fees of its counsel, stock transfer taxes due upon
resale of any of the Shares by them and any advertising expenses incurred in
connection with any offers they may make. It is further understood, however,
that, except as provided in this Section, Section 9 and Section 10 hereof, the
Selling Stockholder shall pay all its own costs and expenses, including the
fees of its counsel and any transfer taxes payable in connection with its sales
of the Shares to the International Managers. Except as provided in this
Section, Section 9 and in Section 10, the International Managers shall pay
their own costs and expenses, including the fees and expenses of their counsel,
any transfer taxes on the Shares which they may sell and the expenses of
advertising any offering of the Shares made by the International Managers.
(g) To apply the net proceeds from the sale of the Underwritten
Shares being sold by the Company as set forth in the Prospectuses.
(h) The Company shall, on or prior to each Closing Date, cause the
Shares to be purchased on such date by the International Managers to be
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance, and shall take such action as shall be necessary to comply
with the rules and regulations of the New York Stock Exchange with respect to
such shares.
(i) During a period of five years from the Effective Date, the
Company shall furnish to the Lead Managers copies of all reports or other
communications furnished to shareholders and copies of any reports or financial
statements furnished to or filed with the Commission, the New York Stock
Exchange or any other national securities exchange on which any class of
securities of the Company shall be listed.
(j) As soon as practicable after the Effective Date of the
Registration Statement, to make generally available to its security holders and
to deliver to the International Managers an earnings statement of the Company,
conforming with the requirements of Section 11(a) of the
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Act, covering a period of at least 12 months beginning after the Effective
Date.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectuses, not
to offer for sale, sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock (other than the Underwritten Shares) or any securities
convertible into or exchangeable or exercisable for such common stock, without
the prior written consent of the Lead Managers.
(b) That the Underwritten Shares to be sold by the Selling
Stockholder hereunder and under the U.S. Underwriting Agreement, which are
represented by the certificates held in custody for the Selling Stockholder,
are subject to the interest of the U.S. Underwriters and the International
Managers, that the arrangements made by the Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of the Selling
Stockholder hereunder shall not be terminated by any act of the Selling
Stockholder, by operation of law or the occurrence of any other event.
(c) To deliver to the Representatives prior to the First Closing
Date a properly completed and executed United States Treasury Department Form
W-9.
8. Conditions of International Managers' Obligations. The
respective obligations of the several International Managers hereunder are
subject to the accuracy, when made and as of each Closing Date, of the
representations and warranties of the Company and the Selling Stockholder
contained herein, to the performance by the Company and the Selling Stockholder
of their respective obligations hereunder and to each of the following
additional terms and conditions:
(a) The Registration Statement and any post-effective amendment
thereto has become effective under the Act; if the Registration Statement has
not become effective prior to the Execution Time, unless the International
Managers agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 P.M. New York City time on the date of
determination of the public offering price, if such determination occurred at
or
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prior to 3:00 P.M. New York City time on such date or (ii) 2:00 P.M. on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 P.M. New York City time
on such date; if required under Rule 424(b), the Prospectuses shall have been
timely filed with the Commission in accordance with Section 6(a) hereof, not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430(A)(a)(3); no Stop Order shall have
been issued and prior to that time no proceeding for that purpose shall have
been initiated or threatened by the Commission; any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectuses or otherwise shall have been complied with; and the Company shall
not have filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectuses without the consent of the
Underwriters. If the Company has elected to rely upon Rule 430A of the Act,
the price of the Shares and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
Act within the prescribed time period, and prior to the applicable Closing Date
the Company shall have provided evidence satisfactory to the International
Managers of such timely filing, or a post-effective amendment providing such
information shall have been prepared, filed and declared effective in
accordance with the requirements of Rule 430A of the Act.
(b) No U.S. Underwriter or International Manager shall have
discovered after the date hereof and disclosed to the Company on or prior to
such applicable Closing Date that the Registration Statement or the
Prospectuses or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Cravath, Swaine & Moore, counsel
for the International Managers, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Shares, the Registration Statement and the Prospectuses, and all other legal
matters relating to this Agreement and the transactions contemplated hereby,
shall be reasonably satisfactory in all respects to
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Cravath, Swaine & Moore, counsel for the International Managers, and the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) On each Closing Date, Winston & Strawn, as special counsel to
the Company, shall have furnished to the International Managers their written
opinion addressed to the Underwriters and dated such Closing Date in form and
substance satisfactory to the International Managers to the effect that:
(i) the Company and each of its Significant Subsidiaries have been
duly incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses, requires such
qualification; and have all corporate power and authority necessary to
own or hold their respective properties and to conduct the business in
which they are engaged as described in the Prospectus;
(ii) this Agreement and the U.S. Underwriting Agreement have been
duly authorized, executed, and delivered by the Company, are legally
valid and binding obligations of the Company, and are enforceable against
the Company in accordance with their terms, except to the extent that
rights to indemnity or contribution hereunder and thereunder may be
limited by Federal or state securities laws or the public policy
underlying such laws may limit the right to indemnity and contribution
thereunder; no consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any
Federal, state, local or other governmental authority or any court or
other tribunal is required by the Company for the execution, delivery, or
performance of this Agreement or the U.S. Underwriting Agreement by the
Company (except filings under the Act which have been made and consents,
authorizations, permits, orders and other matters required under "blue
sky" or state securities laws as to which such counsel need express no
opinion);
(iii) the Underwritten Shares being sold by the Company have been
duly and validly authorized and, when
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duly countersigned by the Company's Transfer Agent and Registrar and
issued and delivered in accordance with the provisions of this Agreement
and the U.S. Underwriting Agreement, as described in the Registration
Statement, will be duly and validly issued, fully paid and nonassessable;
the Underwritten Shares conform to the description of the Common Stock in
the Prospectuses; and the Underwritten Shares have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance;
(iv) the Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the Prospectuses were
filed with the Commission pursuant to the subparagraph of Rule 424(b) of
the Rules and Regulations specified in such opinion on the date specified
therein, no Stop Order has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by the
Commission;
(v) the Registration Statement and the Prospectuses and any further
amendments or supplements thereto made by the Company prior to each
Closing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
Rules and Regulations.
Notwithstanding the foregoing, each of such opinions may be subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating to
creditors' rights generally and to court decisions with respect thereto and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and no opinion need be
expressed as to the availability of equitable remedies for any breach of any
such agreement.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the corporate law of the
State of Delaware; and (ii) rely (to the extent such counsel deems proper and
specifies in their opinion), as to matters involving the application of the
laws of jurisdictions other
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than the State of New York or the United States or the corporate law of the
State of Delaware upon opinions (dated the applicable Closing Date, addressed
to the International Managers and in form reasonably satisfactory to the
International Managers with signed or conformed copies for each of the
International Managers) of counsel acceptable to Cravath, Swaine & Moore. Such
counsel shall also have furnished to the International Managers a written
statement, addressed to the International Managers and dated the applicable
Closing Date, in form and substance satisfactory to the International Managers,
to the effect that such counsel participated in conferences with officers and
representatives of the Company, Arthur Anderson & Co., Coopers & Lybrand, the
International Managers and Cravath, Swaine & Moore in connection with the
preparation of the Registration Statement, and based on the foregoing and
without assuming responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or making any
independent check or verification thereof, no facts have come to the attention
of such counsel which lead them to believe that (I) the Registration Statement,
as of the Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (II) each of the
Prospectuses as amended or supplemented, as of each Closing Date, contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(e) On each Closing Date, Joseph F. McCarthy, General Counsel to the
Company, or Michael O'Shea, corporate counsel to the Company, shall have
furnished to the International Managers his written opinion addressed to the
International Managers and dated such Closing Date in form and substance
satisfactory to the International Managers to the effect that:
(i) the Company and each of its Significant Subsidiaries have been
duly incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses, requires such
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qualification; and have all corporate power and authority necessary to
own or hold their respective properties and to conduct the business in
which they are engaged as described in the Prospectuses;
(ii) the Company has an authorized capitalization as set forth in the
Prospectuses, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and nonassessable and conform to the description thereof contained in the
Prospectuses; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid, nonassessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims, except as described
in the Prospectuses; to the best of such counsel's knowledge after due
inquiry and investigation, there is no commitment, plan, or arrangement
to issue, and no outstanding option, warrant, or other right calling for
the issuance of, any share of capital stock of the Company or of the
Company's subsidiaries to any person other than the Company, or any
security or other instrument which by its terms is convertible into,
exercisable for, or exchangeable for capital stock of the Company or of
the Company's subsidiaries, except as may be described in the
Prospectuses;
(iii) the Underwritten Shares being sold by the Company have been
duly and validly authorized and, when duly countersigned by the Company's
Transfer Agent and Registrar and issued and delivered in accordance with
this Agreement and the U.S. Underwriting Agreement, as described in the
Registration Statement, will be duly and validly issued, fully paid and
nonassessable; the Underwritten Shares conform to the description of the
Common Stock in the Prospectuses; and the Underwritten Shares have been
approved for listing on the New York Stock Exchange, subject to official
notice of issuance;
(iv) there is no litigation, arbitration, claim, governmental or
other proceeding or investigation pending or, to the best of such
counsel's knowledge after due inquiry and investigation, threatened to
which the Company or any of its subsidiaries is a party or to which any
of their respective operations, businesses or assets is the subject which
if determined
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adversely to the Company might have a material adverse effect upon the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole; neither the Company nor any of its subsidiaries is in
violation of, or in default with respect to, any law, rule, regulation,
order, judgment, or decree, except as may be described in the
Prospectuses or such as in the aggregate do not have a significant
likelihood of having a material adverse effect upon the consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries taken as a whole;
(v) neither the Company nor any of its subsidiaries is now in
violation or breach of, or in default with respect to, any material
provision of any contract, agreement, instrument, lease or license, which
is material to the Company and its subsidiaries taken as a whole;
(vi) neither the Company nor any of its subsidiaries is in violation
or breach of, or in default with respect to, any term of its Certificate
of Incorporation or By-laws;
(vii) the execution, delivery and performance of this Agreement and
the U.S. Underwriting Agreement and the issue and sale of the Shares do
not violate, result in a breach of, conflict with, or (with or without
the giving of notice or the passage of time or both) entitle any party to
terminate or call a default under any material contract, agreement,
instrument, lease, or license known to such counsel, or violate or result
in a breach of any term of the articles of incorporation (or other
charter document) or by-laws of the Company or any of its subsidiaries,
or violate, result in a breach of, or conflict with any law or statute,
rule, or regulation, or any order, judgment, or decree known to such
counsel, that is binding on the Company or any of its subsidiaries or to
which any of their respective operations, businesses or assets are
subject; no consent, authorization, approval, order, license, certificate
or permit of or from, or declaration or filing with any Federal, state,
local or other governmental or foreign authority or any court or other
tribunal is required by the Company for the execution, delivery or
performance of this Agreement and the U.S.
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Underwriting Agreement or for the issuance and sale of the Shares by the
Company (except filings under the Act which have been made and consents,
authorization, permits, orders and other matters required under Blue Sky
or State securities laws as to which such counsel need express no
opinion);
(viii) any contract, agreement, instrument, lease or license required
to be described in the Registration Statement or the Prospectuses has
been properly described therein; any contract, agreement, instrument,
lease, or license required to be filed as an exhibit to the Registration
Statement has been filed with the Commission as an exhibit to the
Registration Statement;
(ix) insofar as statements in the Prospectuses purport to summarize
the status of litigation or the provisions of laws, rules, regulations,
orders, judgments, decrees, contracts, agreements, instruments, leases,
or licenses, such statements have been prepared or reviewed by such
counsel and accurately reflect the status of such litigation and
provisions purported to be summarized and are correct in all material
respects; and
(x) there are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
Underwritten Shares pursuant to the Company's Certificate of
Incorporation or By-laws, in each case as amended, or any agreement or
other instrument; and no holders of securities of the Company have rights
to the registration thereof under the Registration Statement except as
set forth in the Prospectuses or, if any such holders have such rights,
such holders have waived such rights;
Notwithstanding the foregoing, each of such opinions may be subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect relating to
creditors' rights generally and to court decisions with respect thereto and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and no opinion need be
expressed as to the availability of equitable remedies for any breach of any
such agreement.
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In rendering such opinion, such counsel may (i) state that his
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of Michigan and the corporate law of the
State of Delaware; and (ii) rely (to the extent such counsel deems proper and
specifies in his opinion), as to foreign matters involving the application of
the laws of jurisdictions other than the State of Michigan or the United States
or the corporate law of the State of Delaware upon opinions (dated each Closing
Date, addressed to the International Managers and in form reasonably
satisfactory to the International Managers with signed or conformed copies for
each of the International Managers) of counsel acceptable to Cravath, Swaine &
Moore.
(f) (A) On the First Closing Date, there shall have been furnished
to you the opinion (addressed to the International Managers) of Smith-Hughes,
Raworth & McKenzie, British Virgin Islands counsel to the Selling Stockholder,
dated such Closing Date in form and substance satisfactory to the International
Managers to the effect that, with respect to the Selling Stockholder:
(i) The Selling Stockholder has the legal right and power and all
authorization and approval required by law to enter into this Agreement,
the U.S. Underwriting Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement, the
U.S. Underwriting Agreement, the Power of Attorney and the Custody
Agreement by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any British Virgin Islands
statute, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or to
which any of the property or assets of the Selling Stockholder is
subject, nor will such actions result in any violation of the provisions
of the Certificate of Incorporation or the Memorandum and Articles of
Association or any partnership agreement of the Selling Stockholder or
any statute or any order, rule or regulation of the British Virgin
Islands known to such counsel of any court or governmental agency or body
having jurisdiction over
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the Selling Stockholder or the property or assets of the Selling
Stockholder; and no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body of the British Virgin Islands is required for the execution,
delivery and performance of this Agreement, the U.S. Underwriting
Agreement, the Power of Attorney or the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby, except the registration
under the Act of the Underwritten Shares, and such consents, approvals,
authorizations, registrations, filings or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the shares by the International Managers or
as may be required by the laws of any country other than the United
States;
(ii) This Agreement and the U.S. Underwriting Agreement have each
been duly authorized, executed and delivered by the Selling Stockholder;
and
(iii) The Power of Attorney and the Custody Agreement have each been
duly authorized, executed and delivered by the Selling Stockholder; and
(B) On the First Closing Date, there shall have been furnished to
you the opinion (addressed to the International Managers) of Paul, Weiss,
Rifkind, Wharton & Garrison, special United States counsel to the Selling
Stockholder, dated such Closing Date in the form and substance satisfactory to
the International Managers to the effect that, with respect to the Selling
Stockholder;
(i) The execution, delivery and performance of this Agreement, the
U.S. Underwriting Agreement, the Power of Attorney and the Custody
Agreement by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute of the United
States or the State of New York, nor will such actions result in any
violation of the provisions of any order, rule or regulation of the
United States or the State of New York known to such counsel of any court
of governmental agency or body having jurisdiction over
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the Selling Stockholder or the property or assets of the Selling
Stockholder; and no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body of the United States or the State of New York is required for the
execution, delivery and performance of this Agreement, the U.S.
Underwriting Agreement, the Power of Attorney or the Custody Agreement by
the Selling Stockholder and the consummation of the Selling Stockholder
of the transactions contemplated hereby and thereby, except the
registration under the Act of the Underwritten Shares, and such consents,
approvals, authorizations, registrations, filings or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the shares by the U.S.
Underwriters;
(ii) This Agreement, the U.S. Underwriting Agreement, the Power of
Attorney and the Custody Agreement constitute valid and binding
agreements of the Selling Stockholders, enforceable in accordance with
their respective terms, (a) except that such enforceability may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors' rights
generally and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity), and (b) except to the extent that rights to indemnity or
contribution hereunder and thereunder may be limited by federal or state
securities laws or the public policy underlying such laws may limit the
right to indemnity and contribution thereunder; and
(iii) Assuming that the U.S. Underwriters and the International
Managers are purchasers in good faith of the Underwritten Shares to be
sold by the Selling Stockholder on the First Closing Date under this
Agreement and the U.S. Underwriting Agreement without notice of any
adverse claim (as such term is defined in the Uniform Commercial Code of
the State of New York), upon delivery of such Shares pursuant to this
Agreement and the U.S. Underwriting Agreement, the U.S. Underwriters and
the International Managers will acquire good title to such Shares free
and clear of any security interests, liens, equities and other
encumbrances.
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(h) The Company shall have furnished to the Underwriters on each
Closing Date a certificate, dated such Closing Date, of its President or a Vice
President and its Chief Financial Officer stating that:
(i) the representations, warranties and agreements of the Company in
Section 1 herein are true and correct as of such Closing Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Paragraph 8(a) have been fulfilled; and
(ii) they have carefully examined the Registration Statement and the
Prospectuses and, in their opinion, (A) as of the Effective Time of the
Registration Statement, the Registration Statement did not include any
untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (B) as of its date, each of the Prospectuses, as
amended or supplemented, did not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading and (C) since the Effective Date of the
Registration Statement or the date of each Prospectus, as the case may
be, no event has occurred which should have been set forth in a
supplement to or amendment of each Prospectus which has not been set
forth in such a supplement or amendment.
(i) At the Execution Time and on each Closing Date, the Company
shall have furnished to the International Managers a letter of Arthur Andersen
& Co. addressed to the International Managers and dated such Closing Date and
in form and substance satisfactory to the International Managers confirming
that they are independent public accountants within the meaning of the Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the International Prospectus,
as of a date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by its letter delivered to the International Managers
concurrently with the execution of this Agreement
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and confirming in all material respects the conclusions and findings set forth
in such prior letter.
(j) The NASD upon review of the terms of the public offering of the
Underwritten Shares, shall not have objected to the participation by any of the
International Managers in such offering or asserted any violation of the
By-Laws of the NASD.
(k) Neither the Company nor any of its subsidiaries (1) shall have
sustained since the date of the latest audited financial statements included in
the International Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the International Prospectus or
(2) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or result of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the International Prospectus the effect of which, in any such
case described in clause (1) or (2) of this subparagraph, is, in the judgment
of the International Managers, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
International Prospectus.
(l) The Shares to be purchased on such Closing Date by the
International Managers shall be approved for listing on the New York Stock
Exchange, subject only to official notice of issuance and evidence of
satisfactory distribution.
(m) The Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholder) shall have furnished to
the Lead Managers on each Closing Date a certificate, dated such Closing Date,
signed by, or on behalf of, the Selling Stockholder (or the Custodian or one or
more attorneys-in-fact) stating that the representations, warranties and
agreements of the Selling Stockholder contained herein are true and correct as
of such Closing Date and that the Selling Stockholder has complied
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with all agreements contained herein to be performed by the Selling Stockholder
at or prior to the such Closing Date.
All such opinions, certificates, letters and documents mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are reasonably satisfactory to you and
Cravath, Swaine & Moore, counsel for the International Managers, and the
Company shall furnish to you conformed copies thereof in such quantities as you
reasonably request.
9. Indemnification and Contribution. (a) The Company and the
Selling Stockholder jointly and severally agree to indemnify and hold harmless
each International Manager against any loss, claim, damage or liability (or any
action in respect thereof), including without limitation, any legal or other
expenses reasonably incurred by any International Manager or any such
controlling person in connection with defending or investigating any such
action or claim, joint or several, to which such International Manager may
become subject, under the Act or otherwise, insofar as such loss, claim, damage
or liability (or action in respect thereof) arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus, any Prospectus or
the Registration Statement or any Prospectus as amended or supplemented or in
any Blue Sky application or other document executed by the Company specifically
for that purpose or based upon written information furnished by the Company
filed in any state or other jurisdiction in order to qualify any of or all the
Shares under the securities laws thereof (any such application, document or
information being hereinafter referred to as a "Blue Sky Application"), or (ii)
the omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, any Prospectus or the Registration Statement or any
Prospectus as amended or supplemented or in any Blue Sky Application a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and shall reimburse each International Manager promptly after
receipt of invoices from such International Manager for any legal or other
expenses as reasonably incurred by such International Manager in connection
with investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses
might later be held to be improper, in which
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case such payments shall be promptly refunded; provided, however, that the
Company and the Selling Stockholder shall not be liable (x) under this
paragraph 9(a) in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any International
Manager specifically for use in the preparation of the Registration Statement,
any Preliminary Prospectus, any Prospectus or the Registration Statement or any
Prospectus as amended or supplemented, or any Blue Sky application, and (y) in
no event shall the liability of the Selling Stockholder exceed the proceeds
received by the Selling Stockholder from the sale by the Selling Stockholder of
its portion of the Shares pursuant to this Agreement. The Company also agrees
to indemnify and hold harmless the Independent Underwriter and any person, if
any, who controls the Independent Underwriter within the meaning of either
Section 15 of the Act, or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments incurred as a result
of the Independent Underwriter's participation as a "qualified independent
underwriter" within the meaning of Section 1 of Article III of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. in
connection with the offering of the Common Stock except for any losses, claims,
damages, liabilities and judgments resulting from the Independent
Underwriter's, or such controlling person's, gross negligence or willful
misconduct.
(b) Each International Manager severally, but not jointly, shall
indemnify and hold harmless the Company against any loss, claim, damage or
liability (or any action in respect thereof) to which the Company may become
subject, under the Act or otherwise, insofar as such loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any Preliminary Prospectus, any Prospectus or the
Registration Statement or any Prospectus as amended or supplemented, or in any
Blue Sky Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, any Prospectus or the
Registration Statement or any Prospectus as amended or supplemented, or in any
Blue Sky Application a material fact required to be stated therein or necessary
to
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make the statements therein not misleading and shall reimburse the Company
promptly after receipt of invoices from the Company for any legal or other
expenses as reasonably incurred by the Company in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that such indemnification or reimbursement shall
be available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company through you by or on behalf of such International Manager
specifically for use in the preparation thereof.
(c) Promptly after receipt by any indemnified party under subsection
(a) or (b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure so to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 9 except to the extent it
has been prejudiced in any material respect by such failure or from any
liability which it may have to an indemnified party otherwise than under this
Section 9. If any such claim or action shall be brought against any
indemnified party and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under such
subsection for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; except that the Representatives shall have the right to
employ counsel to represent you and those other International Managers who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the International Managers
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against the Company under such subsection if, in your reasonable judgment, it
is advisable for you and those International Managers to be represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to Section 9(a)
hereof in respect of such action or proceeding, then in addition to such
separate counsel for the indemnified parties the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate
counsel (in addition to any local counsel) for the Independent Underwriter in
its capacity as a "qualified independent underwriter" and all persons, if any,
who control the Independent Underwriter within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act.
(d) If the indemnification provided for in this Section 9 is
unavailable to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, the Selling Stockholder and the
International Managers from the offering of the Shares or (ii) if the
allocation provided by clause (i) above 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, the
Selling Stockholder and the International Managers in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Stockholder and the International Managers shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and/or the Selling
Stockholder bear to the total underwriting discounts and commissions received
by the International Managers, in each case as set forth in the table on the
cover page of the International Prospectus (with the estimated expenses
allocated pro rata among the Shares and the U.S. Shares). Relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement
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of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholder or the
International Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholder and the International Managers
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were to be 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 into account the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), (i) no International Manager shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such International Manager has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) notwithstanding the
provisions of this subsection (d), the Selling Stockholder shall not be
required to contribute any amount in excess of the amount by which the amount
of proceeds received by the Selling Stockholder from the sale by the Selling
Stockholder of its portion of the Shares pursuant to this Agreement exceed the
amount of any damages the Selling Stockholder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The International
Managers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint. Each
party entitled to contribution agrees that upon the service of a summons or
other initial legal process upon it in any action instituted against it in
respect of which contribution may be sought, it shall promptly give
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written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought for
any obligation it may have hereunder or otherwise (except as specifically
provided in subsection (c) hereof).
(e) The obligations of the Company and the Selling Stockholder under
this Section 9 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have, and shall extend, upon the same terms
and conditions, to each person, if any, who controls any International Manager
within the meaning of the Act; and the obligations of the International
Managers under this Section 9 shall be in addition to any liability that the
respective International Managers may otherwise have, and shall extend, upon
the same terms and conditions, to each director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) or the Selling Stockholder, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
10. Substitution of International Managers. If, on either Closing
Date, any International Manager defaults in the performance of its obligations
under this Agreement, the non-defaulting International Managers may, but shall
not be required to, find one or more substitute underwriters to purchase such
Shares or may, but shall not be required to, make such other arrangements
satisfactory to the Company as such non-defaulting International Managers deem
advisable, or the non-defaulting International Managers may, but shall not be
required to, agree to purchase such Shares in each case upon the terms set
forth in this Agreement. If the non-defaulting International Managers or other
underwriters satisfactory to the non-defaulting International Managers do not
elect to purchase the Shares which the defaulting International Manager agreed
but failed to purchase, this Agreement shall terminate without liability on the
part of any non-defaulting International Manager or the Company, except that
the Company shall continue to be liable for the payment of expenses to the
extent set forth in Section 6(f) and Section 11.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by its
default. If other
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underwriters agree to purchase the Shares of the defaulting International
Manager, either the International Managers or the Company may postpone the
First Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
International Managers may be necessary in the Registration Statement, the
International Prospectus or in any other document or arrangement.
11. Effective Date and Termination. (a) This Agreement shall
become effective at 11:00 A.M., New York City time, on the first full Business
Day following the date hereof, or at such earlier time after the Registration
Statement becomes effective as you shall first release the Firm Shares for sale
to the public. You shall notify the Company immediately after you have taken
any action which causes this Agreement to become effective. Until this
Agreement is effective, it may be terminated by the Company by giving notice as
hereinafter provided to you, or by you by giving notice as hereinafter provided
to the Company, except that the provisions of Section 6(i) and Section 9 shall
at all times be effective. For purposes of this Agreement, the release of the
initial public offering of the Firm Shares for sale to the public shall be
deemed to have been made when you release, by telecopy or otherwise, firm
offers of the Firm Shares to securities dealers or release for publication a
newspaper advertisement relating to the Firm Shares, whichever occurs first.
(b) From the date of this Agreement until the First Closing Date,
this Agreement may be terminated by you in your absolute discretion by giving
notice as hereinafter provided to the Company, if (i) the Company shall have
failed, refused or been unable, at or prior to such Closing Date, to perform
any agreement on its part to be performed hereunder, (ii) any other condition
to the obligations of the International Managers hereunder is not fulfilled,
(iii) there occurs any change, or any development involving a prospective
change, in or affecting the financial condition of the Company or its
subsidiaries, which in your judgment, materially impairs the investment quality
of the Shares; (iv) there is any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act or Rule
15c3-1 under the Exchange Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with
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positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited, or minimum
prices shall have been established on such exchange by the Commission, or by
such exchange or other regulatory body or governmental authority having
jurisdiction, (vi) any banking moratorium shall have been declared by Federal
or New York governmental authorities, (vii) there is an outbreak or escalation
of hostilities involving the United States on or after the date hereof, or the
United States is or becomes engaged in hostilities which result in the
declaration of a national emergency or war, the effect of which, in your
judgment, makes it inadvisable or impractical to proceed with the completion of
the sale of or any payment for the Shares on the terms and in the manner
contemplated in the Prospectuses, or (viii) there shall have been such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such), in your judgment, as to make it inadvisable or
impractical to proceed with the delivery of the Shares. Any termination of
this Agreement pursuant to this Section 11 shall be without liability on the
part of the Company or any International Manager, except as otherwise provided
in Section 6(g), Section 9 and Section 11 of this Agreement.
Any notice referred to above may be given at the address specified in
Section 13 hereof in writing or by telecopier, telex or telephone, and if by
telecopier, telex or telephone, shall be immediately confirmed in writing.
Any notice referred to above may be given at the address specified in
Section 14 hereof in writing or by telecopy or telephone, and if by telecopy or
telephone, shall be immediately confirmed in writing.
If notice shall have been given pursuant to this Section 11
preventing this Agreement from becoming effective, or if the Company shall fail
to tender the Shares for delivery to the International Managers for any reason
permitted under this Agreement, or if the International Managers shall decline
to purchase the Shares for any reason permitted under this Agreement, the
Company shall reimburse the International Managers for the reasonable fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Shares,
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and upon demand the Company shall pay the full amount thereof to the
International Managers.
12. Survival of Certain Provisions. The agreements contained in
Section 9 hereof and the representations, warranties and agreements of the
Company contained in Sections 1 and 6 hereof and the Selling Stockholder
contained in Sections 2 and 7 hereof shall survive the delivery of the Shares
to the International Managers hereunder and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
13. Notices. Except as otherwise provided in the Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, such notice shall be in writing or by telecopy addressed to the
Company at the address of the Company set forth in the Registration Statement,
Attention: James H. Vandenberghe; (b) whenever notice is required by the
provisions of this Agreement to be given to the Selling Stockholder, such
notice shall be in writing or by telecopy addressed to the Selling Stockholder
at Wickam's Cay, Road Town, Tortola, British Virgin Islands, with a copy to
IFINT-USA Inc., 375 Park Avenue, Suite 2107, New York, NY 10152, Attention:
Stephen V. O'Connell, and (c) whenever notice is required by the provisions of
this Agreement to be given to the several International Managers, such notice
shall be in writing or by telecopy addressed to you, in care of Lehman Brothers
International (Europe), One Broadgate, London EC2M 7HA, England, Attention:
Syndicate Department.
14. Information Furnished by U.S. Underwriters. The Company, the
Selling Stockholder and the International Managers severally confirm that the
statements set forth in the last paragraph of the cover page with respect to
the public offering of the Shares and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectuses are correct and constitute the
written information furnished by or on behalf of any International Manager
referred to in paragraph (b) of Section 1 hereof and in paragraphs (a) and (b)
of Section 9 hereof.
15. Parties. This Agreement shall inure to the benefit of and
binding upon the several International Managers, the Company, the Selling
Stockholder and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those
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persons, except that (a) the representations, warranties, indemnities and
agreements of the Company and the Selling Stockholder contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any International Manager within the meaning of Section 15
of the Act and for the benefit of any U.S. Underwriter (and controlling persons
thereof) who offers or sells any Shares in accordance with the terms of the
Agreement Between U.S. Underwriters and International Managers and (b) the
indemnity agreement of the International Managers contained in Section 9 hereof
shall be deemed to be for the benefit of directors of the Company, officers of
the Company who signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Act. Nothing in this
Agreement shall be construed to give any person, other than the persons
referred to in this paragraph, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Compliance with Schedule E of NASD by-Laws. Each International
Manager agrees, severally and not jointly, that in accordance with Section 12
of Schedule E of the By-Laws of the NASD, a transaction in Shares issued by the
Company shall not be executed by such International Manager in a discretionary
account without the prior specific written approval of the customer.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without respect
to choice of law principles thereof.
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18. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the foregoing correctly sets forth the agreement among the
Company, the Selling Stockholder and the International Managers, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
LEAR SEATING CORPORATION,
By:
---------------------------
Name:
Title:
FIMA Finance Management Inc., as Selling Stockholder,
By:
----------------------------
Name:
Title:
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Accepted:
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
KIDDER, PEABODY INTERNATIONAL LIMITED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
WERTHEIM SCHRODER INTERNATIONAL LIMITED
For themselves and as Lead Managers
for each of the several International Managers
named in Schedule I hereto
By: LEHMAN BROTHERS INTERNATIONAL (EUROPE)
By:
-------------------------
Authorized Representative
MORGAN STANLEY & CO. INCORPORATED
As the Qualified Independent Underwriter
and as an Underwriter
By:
-------------------------
Authorized Representative