<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1996
REGISTRATION NO. 333-16869
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
CROWN CORK & SEAL CROWN CORK & SEAL CROWN CORK & SEAL
COMPANY, INC. FINANCE PLC FINANCE
(EXACT NAME OF (EXACT NAME OF (EXACT NAME OF
REGISTRANT AS SPECIFIED REGISTRANT AS SPECIFIED REGISTRANT AS SPECIFIED
IN ITS CHARTER) IN ITS CHARTER) IN ITS CHARTER)
PENNSYLVANIA UNITED KINGDOM FRANCE
(STATE OR OTHER (STATE OR OTHER (STATE OR OTHER
JURISDICTION OF JURISDICTION OF JURISDICTION OF
INCORPORATION OR INCORPORATION OR INCORPORATION OR
ORGANIZATION) ORGANIZATION) ORGANIZATION)
23-1526444 NOT APPLICABLE NOT APPLICABLE
(I.R.S. EMPLOYER (I.R.S. EMPLOYER (I.R.S. EMPLOYER
IDENTIFICATION NO.) IDENTIFICATION NO.) IDENTIFICATION NO.)
DOWNSVIEW ROAD LE COLISEE I
WANTAGE, OXON UK RUE FRUCTIDOR
9300 ASHTON ROAD OX12 9BL
PHILADELPHIA, PA 44-123-577-2929 75830 PARIS CEDEX 17,
19136 FRANCE
(215) 698-5100 (ADDRESS, INCLUDING ZIP 33-1-49-18-40-00
CODE, AND TELEPHONE (ADDRESS, INCLUDING ZIP
NUMBER, INCLUDING AREA CODE, AND TELEPHONE
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S NUMBER, INCLUDING AREA
CODE, AND TELEPHONE PRINCIPAL EXECUTIVE CODE, OF REGISTRANT'S
NUMBER, INCLUDING AREA OFFICES) PRINCIPAL EXECUTIVE
CODE, OF REGISTRANT'S OFFICES)
PRINCIPAL EXECUTIVE
OFFICES)
-------------
RICHARD L. KRZYZANOWSKI, ESQ.
CROWN CORK & SEAL COMPANY, INC.
9300 ASHTON ROAD
PHILADELPHIA, PA 19136
(215) 698-5208
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
THOMAS A. RALPH, ESQ. JOHN W. WHITE, ESQ.
WILLIAM G. LAWLOR, ESQ. CRAVATH, SWAINE & MOORE
DECHERT PRICE & RHOADS 825 EIGHTH AVENUE
4000 BELL ATLANTIC TOWER, NEW YORK, NY 10019
1717 ARCH STREET (212) 474-1000
PHILADELPHIA, PA 19103-2793
(215) 994-4000
-------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
If the only securities being registered on this Form are offered pursuant to
dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
-------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
This Registration Statement, as amended, also constitutes Post-Effective
Amendment No. 1 to Registration Statement No. 33-56965 of Crown Cork & Seal
Company, Inc., which was declared effective on January 9, 1995. Such Post-
Effective Amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement and in accordance with Section
8(c) of the Securities Act. Pursuant to Rule 429 under the Securities Act, the
Prospectus filed as part of this Registration Statement also constitutes a
Prospectus for Registration Statement No. 33-56965. The $200,000,000 in Debt
Securities remaining unsold from Registration Statement No. 33-56965 will be
combined with the $1,300,000,000 aggregate amount of Debt Securities to be
registered pursuant to this Registration Statement to enable the Registrants
to offer an aggregate amount of $1,500,000,000 pursuant to the combined
Prospectus; provided that $200,000,000 of Debt Securities may be offered only
by Crown Cork & Seal Company, Inc.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses of issuance and distribution
estimated* to be incurred in connection with the issuance and distribution of
the securities registered hereby, other than underwriting discounts and
commissions:
<TABLE>
<S> <C>
SEC registration fee............................................. $393,939
Rating agencies' fees............................................ 330,000
Trustee's fees................................................... 90,000
Printing expenses................................................ 150,000
Legal fees and expenses.......................................... 125,000
Accountants' fees and expenses................................... 25,000
Blue Sky fees and expenses....................................... 0
Miscellaneous.................................................... 50,000
----------
Total.......................................................... $1,163,939
</TABLE>
- --------
* All items estimates except for SEC registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Pennsylvania Business Corporation Law of 1988, as amended (the
"PBCL"), Pennsylvania corporations, such as Crown Cork & Seal Company, Inc.
(the "Company"), have the power to indemnify any person acting as a
representative of the corporation against liabilities incurred in such
capacity provided certain standards are met, including good faith and the
belief that the particular action or failure to take action is in the best
interests of the corporation. In general, this power to indemnify does not
exist in the case of actions against any person by or in the right of the
corporation if the person otherwise entitled to indemnification shall have
been adjudged to be liable to the corporation unless a court determines that
despite the adjudication of liability but in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for
expenses that the court deems proper. A corporation is required to indemnify
representatives of the corporation against expenses they may incur in
defending actions against them in such capacities if they are successful on
the merits or otherwise in the defense of such actions. In all other cases, if
a representative of the corporation acted, or failed to act, in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, indemnification is discretionary, except as may
be otherwise provided by a corporation's bylaws, agreement, vote of
shareholders or disinterested directors or otherwise. Indemnification so
otherwise provided may not, however, be made if the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Expenses (including attorney's
fees) incurred in defending any such action may be paid by the corporation in
advance of the final disposition of the action upon receipt of an undertaking
by or on behalf of the representative to repay the amount if it is ultimately
determined that he or she is not entitled to be indemnified by the
corporation.
Section 1746 of the PBCL provides that the foregoing provisions shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under, among other things, any bylaw provision, provided that
no indemnification may be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
II-1
<PAGE>
The Company's Bylaws provide that the Company shall indemnify to the fullest
extent permitted by applicable law any person who was or is a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding by reason of the fact that
such person is or was a director or officer of the Company, against all
liability, loss and expense (including attorney's fees and amounts paid in
settlement) actually and reasonably incurred by such person in connection with
such proceeding, whether or not the indemnified liability arises or arose from
any proceeding by or in the right of the Company. The Company's Bylaws also
provide that expenses incurred by a director or officer in defending (or
acting as a witness in) a proceeding may (and, following a "change in control
of the Company" shall) be paid by the Company in advance of the final
disposition of such proceeding, subject to the provisions of applicable law,
upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company under applicable law. Additionally,
the Company's Bylaws limit directors' personal liability for monetary damages
for any action taken, or any failure to take any action, unless (1) the
director has breached or failed to perform the duties of his or her office
under the PBCL's standard of care and justifiable reliance provisions and (2)
the breach or failure to perform constitutes self-dealing, willful misconduct
or recklessness. However, these provisions do not apply to the responsibility
or liability of a director pursuant to any criminal statute or for the payment
of taxes pursuant to local, state or federal law. The Company has purchased
directors and officers' liability insurance covering certain liabilities which
may be incurred by the officers and directors of the Registrant in connection
with the performance of their duties.
The above provisions of the Company's Bylaws provide for indemnification of
(but not advancement of expenses to) directors and officers of subsidiaries of
the Company, such as Crown Cork & Seal Finance PLC and Crown Cork & Seal
Finance S.A., to the same extent as directors and officers of the Company. In
addition, the Articles of Association of Crown Cork & Seal Finance PLC provide
that, subject to applicable law, every director and officer shall be entitled
to be indemnified out of its assets against all costs, charges, losses,
expenses and liabilities incurred or sustained by him in the execution and
discharge of his duties or otherwise in relation thereto. With respect to
Crown Cork & Seal Finance S.A., French company law does not allow companies to
indemnify directors and officers (directeurs generaux) in their capacity as
directors and officers, respectively.
ITEM 16. EXHIBITS
The Exhibit Index appearing on page II-9 is hereby incorporated by
reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(1) (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrants pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
II-2
<PAGE>
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(d) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any
delayed offering or throughout a continuous offing. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of Regulation S-X if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
(2) For purposes of determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing provisions
described in Item 15 above, the Registrants have been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrants of expenses incurred or paid by
a director, officer, or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(4)(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
December 10, 1996.
Crown Cork & Seal Company, Inc.
/s/ William J. Avery
By:
----------------------------------
Name: William J. Avery
Title: Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 10, 1996.
<TABLE>
<CAPTION>
<S> <C>
SIGNATURES TITLE
/s/ William J. Avery Chairman of the
- ------------------------------------
WILLIAM J. AVERY Board and Chief
Executive Officer
(Principal
Executive Officer)
/s/ Alan W. Rutherford Executive Vice
- ------------------------------------
ALAN W. RUTHERFORD President, Chief
Financial Officer
and Director
(Principal
Financial Officer)
/s/ Timothy J. Donahue Vice President and
- ------------------------------------
TIMOTHY J. DONAHUE Controller
(Principal
Accounting
Officer)
* Director
- ------------------------------------
HENRY E. BUTWEL
Director
*
- ------------------------------------
CHARLES F. CASEY
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
Director
*
- ------------------------------------
FRANCIS X. DALTON
Director
*
- ------------------------------------
GUY DE WOUTERS
Director
*
- ------------------------------------
CHESTER C. HILINSKI
Director
*
- ------------------------------------
RICHARD L. KRZYZANOWSKI
Director
*
- ------------------------------------
JOSEPHINE C. MANDEVILLE
Director
*
- ------------------------------------
MICHAEL J. MCKENNA
Director
*
- ------------------------------------
FELIX G. ROHATYN
Director
*
- ------------------------------------
JEAN-PIERRE ROSSO
Director
*
- ------------------------------------
J. DOUGLASS SCOTT
Director
*
- ------------------------------------
ERNEST-ANTOINE SEILLIERE
</TABLE>
II-5
<PAGE>
SIGNATURES
TITLE
Director
*
- ------------------------------------
ROBERT J. SIEBERT
Director
*
- ------------------------------------
HAROLD A. SORGENTI
/s/ William J. Avery
*By: _______________________________
WILLIAM J. AVERY ATTORNEY-IN-FACT
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
December 10, 1996.
Crown Cork & Seal Finance PLC
By: /s/ Alan W. Rutherford
----------------------------------
Name: Alan W. Rutherford
Title: Managing Director
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 10, 1996.
SIGNATURES
TITLE
/s/ Alan W. Rutherford Managing Director
- ------------------------------------ (Principal
ALAN W. RUTHERFORD Executive,
Financial and
Accounting
Officer)
/s/ Craig R.L. Calle Director
- ------------------------------------
CRAIG R.L. CALLE
Authorized Representative
Crown Cork & Seal Company, Inc. in the United States
By: /s/ Alan W. Rutherford
--------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President
and Chief Financial Officer
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Paris, Republic of France, on December 10, 1996.
Crown Cork & Seal Finance S.A.
By: /s/ Bernard Rolley
-----------------------------------
Name: Bernard Rolley
Title: Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on December 10, 1996.
SIGNATURES
TITLE
/s/ Bernard Rolley Chairman and Chief
- ------------------------------------ Executive Officer
BERNARD ROLLEY (Principal
Executive Officer)
/s/ Alan W. Rutherford Chief Financial Officer
- ------------------------------------ and Director (Principal
ALAN W. RUTHERFORD Financial and
Accounting Officer)
/s/ Peter Collier Director
- ------------------------------------
PETER COLLIER
/s/ Timothy J. Donahue Director
- ------------------------------------
TIMOTHY J. DONAHUE
Crown Cork & Seal Company, Inc. Authorized Representative
in the United States
By: /s/ Alan W. Rutherford
---------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President
and Chief Financial Officer
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
------- ----------- -------------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture, including form of Debt Security.*
4.2 Form of Bearer Security Depositary Agreement.
5.1 Opinion of Dechert Price & Rhoads.
5.2 Opinion of Titmuss Sainer Dechert.
5.3 Opinion of Jeantet et Associes.
12.1 Computation of Ratio of Earnings to Fixed Charges.*
23.1 Consent of Price Waterhouse LLP.*
23.2 Consent of Arthur Andersen LLP, Befec-Price
Waterhouse, Claude Chevalier and Salustro Reydel.*
23.3 Consent of Dechert Price & Rhoads (included in Exhibit
5.1).
23.4 Consent of Titmuss Sainer Dechert (included in Exhibit
5.2).
23.5 Consent of Jeantet & Associes (included in Exhibit
5.3).
24.1 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility and Qualification of
The Bank of New York, as Trustee, under the Trust
Indenture Act of 1939, as amended.*
</TABLE>
* Previously filed.
<PAGE>
Exhibit 1.1
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL FINANCE PLC
CROWN CORK & SEAL FINANCE S.A.
Debt Securities
Form of Underwriting Agreement
------------------------------
1. Introductory. Each of Crown Cork & Seal Company, Inc., a
-------------
Pennsylvania corporation ("Crown"), Crown Cork & Seal Finance PLC ("Crown UK"),
a public limited company organized under the laws of England and Wales, and
Crown Cork & Seal Finance S.A. ("Crown France"), a societe anonyme organized
under the laws of the Republic of France, proposes to issue and sell from time
to time certain of its debt securities registered under the registration
statements referred to in Section 2(a) (the "Registered Securities"). Crown UK
and Crown France are hereinafter referred to individually as a "Subsidiary
Issuer" and collectively as the "Subsidiary Issuers". The Subsidiary Issuers,
together with Crown, are hereinafter referred to individually as an "Issuer" and
collectively as the "Issuers". All Registered Securities of any Subsidiary
Issuer will be unconditionally guaranteed (the "Guarantees") as to payment of
principal and any premium or interest by Crown, and all references to the
"Guarantor" herein shall only refer to Crown acting in such capacity and only be
applicable with respect to Registered Securities of any Subsidiary Issuer (or
particular series thereof which are sold pursuant to the terms of this
Agreement). The Registered Securities will be issued under an indenture, dated
as of , 1996 (the "Indenture"), among each of the Issuers, the
Guarantor and The Bank of New York, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, currency of denomination,
redemption provisions, selling prices and other terms, with all such terms for
any particular series of the Registered Securities being determined at the time
of sale. Particular series of the Registered Securities will be sold pursuant
to a Terms Agreement referred to in Section 3, for resale in accordance with
terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The Issuer offering the Securities
is hereinafter referred to as the "Company". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the
<PAGE>
2
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in
Section 3 are hereinafter referred to as the "Representatives"; provided,
--------
however, that if the Terms Agreement does not specify any representative of the
- -------
Underwriter, the term "Representatives", as used in this Agreement (other than
in Section 2(b), 6 and the second sentence of Section 3), shall mean the
Underwriters. Any Securities issued and sold by Crown UK in bearer form will be
deposited with The Bank of New York, as Bearer Security Depositary, pursuant to
a bearer security depositary agreement, dated as of , 1996 (the
"Bearer Security Depositary Agreement"), among Crown, Crown UK and the Bearer
Security Depositary.
2. Representations and Warranties. The Company and the Guarantor
-------------------------------
represent and warrant to, and agree with, each Underwriter that:
(a) Each of the Company and the Guarantor meets the requirements for
the use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and
a registration statement (No. 333-16869) on such form, including a prospectus,
relating to the Registered Securities has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Pursuant to
Rule 429 under the Act, the prospectus also relates to securities registered
under a prior registration statement of Crown (No. 33-56965). The registration
statement referred to in the first sentence of this Section 2(a), as amended at
the time of any Terms Agreement referred to in Section 3, is hereinafter
referred to as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to reflect
the terms of the Securities and the terms of offering thereof, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act, including all material incorporated by reference
therein, is hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder (the "Rules and Regulations"), as amended and did not
include any untrue
<PAGE>
3
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, and
on the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations,
and neither of such documents will include 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, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to any of the Issuers by any
Underwriter through the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the
------------------------------------
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications (the "Terms Agreement") at the time
the Company determines to sell the Securities. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Securities not already specified in the Indenture, including, but not
limited to, interest rate, maturity, currency of denomination, and redemption
provisions and any sinking fund requirements and whether any of the Securities
may be sold to institutional investors pursuant to Delayed Delivery Contracts
(as defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company and
the Guarantor agree as the time for payment and delivery, being herein and in
the Terms Agreement referred to as the "Closing Date"), the manner and place of
delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the
Securities (the "Prospectus Supplement"). The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. Unless otherwise provided in the Terms Agreement, the Securities of
Crown and Crown France delivered to the Underwriters on the
<PAGE>
4
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Underwriters may request. Securities of
Crown UK delivered to the Underwriters on the Closing Date will be in bearer
form, in such denominations as the Underwriters may request, unless otherwise
provided in the Terms Agreement.
If the Terms Agreement provides for sale of Securities pursuant to
delayed delivery contracts, the Company and the Guarantor authorize the
Underwriters to solicit offers to purchase Securities pursuant to delayed
delivery contracts substantially in the form of Annex 1 attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company and the
Guarantor may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. On the Closing Date the Company or the Guarantor, as the case may
be, will pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery Contracts
(the "Contract Securities"). The Underwriters will not have any responsibility
in respect of the validity or the performance of Delayed Delivery Contracts. If
the Company and the Guarantor execute and deliver Delayed Delivery Contracts,
the Contract Securities will be deducted from the Securities to be purchased by
the several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company
and the Guarantor. The Company and the Guarantor will advise the
Representatives not later than the business day prior to the Closing Date of the
principal amount of Contract Securities.
4. Certain Agreements of the Issuers and the Guarantor. Crown agrees
----------------------------------------------------
with the several Underwriters that it will furnish to Cravath, Swaine & Moore,
counsel for the Underwriters, one conformed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto, and each of the Company and the
<PAGE>
5
Guarantor, jointly and severally, agrees with the several Underwriters that, in
connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to
by the Representatives, subparagraph (5)) not later than the second business day
following the execution and delivery of the Terms Agreement.
(b) The Company and the Guarantor will advise the Representatives
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus and will not, unless legally required to do so, effect such
amendment or supplementation without the Representatives' consent; and the
Company and the Guarantor will also advise the Representatives promptly of the
filing of any such amendment or supplementation of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or the Prospectus to comply with the Act, the Company and
the Guarantor promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, Crown will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the registration
statement relating to the Registered
<PAGE>
6
Securities, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of Crown's most recent Annual Report on Form
10-K filed with the Commission prior to the date of such Terms Agreement, which
earnings statement will satisfy the provisions of Section 11(a) of the Act.
(e) The Company and the Guarantor will furnish to the Representatives
copies of the Registration Statement, including all exhibits, and so long as
delivery of a prospectus by an Underwriter or dealer may be required by the Act,
any related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as are reasonably
requested.
(f) The Company and the Guarantor will arrange for the qualification
of the Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives designate
and will continue such qualifications in effect so long as required for the
distribution of the Securities.
(g) During the period of five years after the date of any Terms
Agreement, Crown will furnish to the Representatives and, upon request, to each
of the other Underwriters, if any, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year; and
Crown will furnish to the Representatives (i) as soon as available, a copy of
each report or definitive proxy statement of Crown filed with the Commission
under the Exchange Act, or mailed to stockholders, and (ii) from time to time,
such other information concerning Crown as the Representatives may reasonably
request.
(h) Each of the Company and the Guarantor, jointly and severally,
will pay all expenses incident to the performance of their obligations under
this Agreement and will reimburse the Underwriters for any reasonable expenses
(including reasonable fees and disbursements of counsel) incurred by them in
connection with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of memoranda
relating thereto, for any fees charged
<PAGE>
7
by investment rating agencies for the rating of the Securities, for the filing
fee of the National Association of Securities Dealers, Inc. relating to the
Registered Securities, if applicable, and for expenses incurred in distributing
the Prospectus, any preliminary prospectuses and any preliminary prospectus
supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending 10 days after the Closing Date, without the prior consent
of the Representatives, the Company and the Guarantor will not offer, sell,
contract to sell or otherwise dispose of any debt securities (other than the
Securities) issued or guaranteed by the Company or the Guarantor and having a
maturity of more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company and the Guarantor herein, to the accuracy of the statements
of Crown officers made in any certificates pursuant to the provisions hereof, to
the performance by the Company and the Guarantor of their obligations hereunder
and to the following additional conditions precedent:
(a) Unless otherwise provided in the Terms Agreement, on the date of
the Terms Agreement and at the Closing Date, the Representatives shall have
received letters, dated respectively as of the date of the Terms Agreement and
as of the Closing Date, of Price Waterhouse, confirming that they are
independent certified public accountants with respect to Crown and its
subsidiaries within the meaning of the Act and the applicable published Rules
and Regulations thereunder and stating in effect that:
(i) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Prospectus and the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data,
<PAGE>
8
pro forma financial information, and/or condensed financial statements
derived from audited financial statements of Crown for the periods
specified in such letters, as indicated in their reports attached to such
letters, copies of which have been furnished to the Underwriters;
(ii) On the basis of limited procedures, not constituting an audit in
accordance with U.S. GAAP, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of
the latest available interim financial statements of Crown and its
subsidiaries, inspection of the minute books of the Board of Directors and
the committees thereof of Crown and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of Crown and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated balance sheets and statements of
income, cash flows and stockholders' equity included or incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations, or are not in
conformity with U.S. GAAP applied on a basis substantially consistent
with the basis for the audited consolidated balance sheets and
statements of income, cash flows and stockholders' equity included or
incorporated by reference in the Prospectus;
(B) any other unaudited income statement or cash flow statement
data and balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Prospectus;
<PAGE>
9
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited condensed
financial statements referred to in paragraph (A) and any unaudited
income statement or cash flow statement data and balance sheet items
included in the Prospectus and referred to in paragraph (B) were not
determined on a basis substantially consistent with the basis for the
audited consolidated financial statements included or incorporated by
reference in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock or minority interest in consolidated subsidiaries or any
increase in the consolidated long-term debt of Crown and its
subsidiaries, or any decreases in consolidated net current assets, net
assets or stockholders' equity, or any changes in any other items
specified by the Underwriters, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in paragraph (E) there were any
decreases in consolidated net sales, operating income or income before
minority interest, or the total or per share amounts of consolidated
net income, or any changes in any other items specified by the
Underwriters, in each case as compared with the comparable period of
the
<PAGE>
10
preceding year and with any other period of corresponding length
specified by the Underwriters, except in each case for decreases or
increases which the Prospectus discloses have occurred or may occur
and which are described in such letter; and
(G) certain sections of the Prospectus do not comply in all
material respects with the disclosure obligations under Regulation S-K
under the Exchange Act (e.g., "Selected Consolidated Financial
----
Information" (Item 301)) if (i) the information disclosed may be
obtained directly or indirectly from Crown's accounting records and
(ii) such information can be evaluated against reasonable criteria
established by the Commission;
(iii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (i) and (ii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with U.S.
GAAP standards, with respect to certain amounts, percentages and financial
information specified by the Underwriters, which are derived from the
general accounting records of Crown and its subsidiaries, which appear in
the Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of Crown and its subsidiaries and have found them to be
in agreement.
References to the Prospectus in this paragraph (a) include any
supplement thereto at the date of the letter.
(b) Unless otherwise provided in the Terms Agreement, on the date of
the Terms Agreement and at the Closing Date, the Representatives shall have
received letters, dated respectively as of the date of the Terms Agreement and
as of the Closing Date, of Befec-Price Waterhouse, confirming that they are
independent certified public accountants with respect to CarnaudMetalbox, a
societe anonyme organized under the laws of the Republic of France and a wholly-
owned subsidiary of Crown ("CarnaudMetalbox"), and its subsidiaries within the
meaning
<PAGE>
11
of the Act and the applicable published Rules and Regulations thereunder and
stating in effect that:
(i) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Prospectus and the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro
forma financial information, and/or condensed financial statements derived
from audited financial statements of CarnaudMetalbox for the periods
specified in such letter, as indicated in their reports attached to such
letters, copies of which have been furnished to the Underwriters;
(ii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (i) above, they have carried out certain specified procedures,
not constituting an audit in accordance with U.S. GAAP standards, with
respect to certain amounts, percentages and financial information specified
by the Underwriters, which are derived from the general accounting records
of CarnaudMetalbox and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records
of CarnaudMetalbox and its subsidiaries and have found them to be in
agreement.
References to the Prospectus in this paragraph (b) include any
supplement thereto at the date of the letter.
(c) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge
<PAGE>
12
of the Company, the Guarantor or any Underwriter, shall be contemplated by the
Commission.
(d) At any time before payment is made to the Company, there shall
not have occurred (i) a change in U.S. or international financial, political or
economic conditions or currency exchange rates for the U.S. dollar or exchange
controls of the U.S. dollar and other applicable currencies as would, in the
judgment of the Underwriters, in their view be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) subsequent to the execution and delivery of the Terms Agreement, (A) any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company or the Guarantor or their
subsidiaries which, in the judgment of the Underwriters, materially impairs the
investment quality of the Securities; (B) any downgrading in the rating of
Crown's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any of Crown's debt securities (other than an announcement of a
possible upgrading, with no implication of a possible downgrading, of such
rating); (C) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such Exchange, or any suspension of trading of any securities of
Crown on any exchange or in the over-the-counter market; (D) any banking
moratorium declared by the United States Federal or New York authorities; or
(E) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by the United States Congress or any other
substantial national or international calamity or emergency if, in the judgment
of the Underwriters, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(e) The Underwriters shall have received an opinion, dated the
Closing Date, of Dechert Price & Rhoads,
<PAGE>
13
counsel for the Company and the Guarantor, subject to such assumptions,
limitations and qualifications as may be reasonably acceptable to the
Underwriters, to the effect that:
(i) Crown has been duly incorporated and is validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania, with
corporate power and authority necessary to own or hold its properties and
to conduct the business in which it is engaged as described in the
Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by
Crown and has been duly qualified under the Trust Indenture Act; the
Securities of Crown have been duly authorized by Crown; any Securities of
Crown other than any Contract Securities have been duly executed, issued
and delivered by Crown; the Indenture, assuming due authorization,
execution and delivery by the Trustee and the Subsidiary Issuers,
constitutes, and the Securities of Crown other than any Contract
Securities, when authenticated by the Trustee and sold pursuant to the
Underwriting Agreement, will constitute, and any Contract Securities of
Crown, when duly executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding obligations of Crown
and the Guarantor enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and
other similar doctrines affecting the legality and binding nature of
obligations or agreements generally) and subject to public policy
limitations with respect to any indemnification relating to securities laws
called for thereunder; and the Securities other than any Contract
Securities conform, and any Contract Securities, when so issued and
delivered and sold, will conform, in all material respects to the
description thereof contained in the Prospectus (subject to the matters
discussed in the proviso to paragraph (ix));
(iii) the Bearer Security Depositary Agreement has been duly authorized,
executed and delivered by Crown,
<PAGE>
14
and, assuming due authorization, execution and delivery by the Bearer
Security Depositary and Crown UK, constitutes a valid and legally binding
obligation of Crown enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and
other similar doctrines affecting the legality and binding nature of
obligations or agreements generally) and subject to public policy
limitations with respect to any indemnification relating to securities laws
called for thereunder;
(iv) the Guarantees have been duly authorized, executed and delivered
by the Guarantor, and constitute valid and legally binding obligations of
the Guarantor enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and
other similar doctrines affecting the legality and binding nature of
obligations or agreements generally);
(v) no consent, approval, authorization or other action by or filing
with any Pennsylvania, New York or United States Federal governmental
agency or body or Pennsylvania, New York or United States Federal court
having jurisdiction over the Company or the Guarantor is required to be
obtained by the Company or the Guarantor in connection with the execution
and delivery of the Terms Agreement (including the provisions of this
Agreement) by the Company and the Guarantor or the consummation of the
transactions contemplated by the Terms Agreement (including the provisions
of this Agreement), except such as have been obtained and made under the
Act, the Exchange Act and the Trust Indenture Act and, in each case, the
rules and regulations thereunder, and such as may be required pursuant to
the undertaking in clause (3) of Item 17 of the
<PAGE>
15
Registration Statement and under foreign and state securities laws and blue
sky laws, as to which such counsel need not express an opinion;
(vi) the execution, delivery and performance by the Issuers (assuming
due execution and delivery by the Subsidiary Issuers) and the Guarantor of
the Indenture, the execution, delivery and performance by the Company
(assuming due execution and delivery by any applicable Subsidiary Issuer)
and the Guarantor of the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance and sale of
the Securities contemplated by the Terms Agreement (including the
provisions of this Agreement) do not (a) conflict with or result in a
violation of any of the provisions of the Articles of Incorporation or By-
laws of Crown, (b) conflict with or violate in any material respect any
Pennsylvania, New York or United States Federal law, rule or regulation,
or, to such counsel's knowledge, any order, judgment or decree known to
such counsel that is applicable to Crown or the Guarantor or any of their
subsidiaries or by which any property or assets of the Company or the
Guarantor or any of their subsidiaries is or may be bound (other than
Federal or state securities or blue sky laws, other anti-fraud laws and
fraudulent transfer laws and bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, as well as general equity principles
(including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, and other similar doctrines) as to which such
counsel need not express any opinion) or (c) to such counsel's knowledge,
result in a material breach of any of the terms or provisions of, or
constitute a default under, any material loan or credit agreement,
indenture, deed of trust, mortgage, note or other agreement or instrument
known to such counsel to which the Company or the Guarantor or any of their
subsidiaries is a party or by which any of them or any of their properties
or assets is or may be bound; and Crown and the Guarantor have full
corporate power and authority to authorize, issue and sell the Securities
of Crown as contemplated by the Terms Agreement (including the provisions
of this Agreement);
(vii) the Registration Statement has become effective under the Act,
and, to such counsel's knowledge, no stop order has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
<PAGE>
16
(viii) the Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by Crown; and
(ix) the statements set forth in the Prospectus under the headings
"Taxation--United States Income Tax Considerations" and "Taxation--Certain
Pennsylvania Taxes", insofar as such statements constitute a summary of the
legal matters referred to therein, fairly summarize in all material
respects the matters therein described (it being understood such opinion
addresses only the specific matters set forth therein and does not address
other tax matters, including tax matters dealt with elsewhere in the
Prospectus or Prospectus Supplement, including, without limitation,
domestic or foreign tax withholding requirements or the status for U.S.
Federal income tax purposes of Securities having a maturity of more than 40
years).
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States of
America, and the laws of the State of New York and the Commonwealth of
Pennsylvania.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date to the
effect that (i) the Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Issuers prior to the Closing Date
(other than the financial statements (including pro forma financial statements
and notes to financial statements or pro forma financial statements) and related
schedules and other financial, accounting or statistical information included in
or excluded from the Registration Statement or the Prospectus, as to which such
counsel need express no belief) appear on their face to be appropriately
responsive in all material respects to the requirements of the Act and the Rules
and Regulations and (ii) such counsel participated in conferences with officers
and representatives of the Company, the Guarantor, Price Waterhouse LLP, the
Underwriters 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
<PAGE>
17
independent check or verification thereof (and relying as to factual matters
upon the statements of officers and other representatives of the Company, the
Guarantor and others), no facts have come to the attention of such counsel which
lead them to believe that (I) the Registration Statement, as of its effective
date and the date of the Terms Agreement, contained an 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 (other than
the information omitted therefrom in reliance on Rule 430A), or (II) the
Prospectus as amended or supplemented, as of its date and as of the Closing
Date, contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that such counsel need not express a belief as to any
financial statements (including pro forma financial statements and notes to
financial statements or pro forma financial statements) and related schedules,
and other financial, accounting or statistical information included in or
excluded from the Registration Statement or the Prospectus.
(f) The Underwriters shall have received an opinion, dated the
Closing Date, of Titmuss Sainer Dechert, special United Kingdom counsel for
Crown and Crown UK, subject to such assumptions, limitations and
qualifications as may be reasonably acceptable to the Underwriters, to the
effect that:
(i) Crown UK has been duly organized and is validly existing under
the laws of its applicable jurisdiction, with corporate power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by
Crown UK; any Securities of Crown UK other than any Contract Securities of
Crown UK have been duly executed, issued and delivered by Crown UK; the
Indenture, assuming due authorization, execution and delivery by the
Trustee, Crown and Crown France, constitutes, and any Securities of Crown
UK other than any Contract Securities of Crown UK, when authenticated by
the Trustee and sold pursuant to the Underwriting Agreement, will
constitute, and any
<PAGE>
18
Contract Securities of Crown UK, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of Crown UK enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) the Bearer Security Depositary Agreement has been duly
authorized, executed and delivered by Crown UK, and, assuming due
authorization, execution and delivery by the Bearer Security Depositary and
Crown, constitutes a valid and legally binding obligation of Crown UK
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(iv) no consent, approval, authorization or other action by or filing
with any United Kingdom governmental agency or United Kingdom court having
jurisdiction over Crown UK is required to be obtained by Crown UK in
connection with the execution and delivery of the Terms Agreement
(including the provisions of this Agreement) by Crown UK or the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), except such as have been
obtained and made under United Kingdom law and such as may be required
pursuant to foreign securities laws;
(v) the execution, delivery and performance by Crown UK of the
Indenture, the execution, delivery and performance by Crown UK of the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts of Crown UK and the sale of any Securities of Crown UK
contemplated by the Terms Agreement (including the provisions of this
Agreement) do not (a) conflict with or result in a violation of any of the
provisions of the Memorandum or Articles of Association or By-laws of Crown
UK, (b) conflict with or violate in any material respect any United Kingdom
law, rule or regulation, or, to such counsel's knowledge, any order,
judgment or decree known to such
<PAGE>
19
counsel that is applicable to Crown or Crown UK or by which any property or
assets of Crown or Crown UK is or may be bound (other than fraudulent
transfer laws and bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, as to which such counsel need not express any opinion) or (c) to
such counsel's knowledge, result in a material breach of any of the terms
or provisions of, or constitute a default under, any material loan or
credit agreement, indenture, deed of trust, mortgage, note or other
agreement or instrument known to such counsel to which Crown UK is a party
or by which it or any of its properties or assets is or may be bound;
(vi) the Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts of Crown UK have been duly authorized,
executed and delivered by Crown UK;
(vii) the statements set forth in the Prospectus under the headings (A)
"The Subsidiary Issuers--Enforceability of Certain Civil Liabilities" (to
the extent such statements relate to Crown UK or United Kingdom law), and
(B) "Description of Debt Securities and Guarantees--Limitations Affecting
Security Holders" (to the extent such statements relate to Crown UK or
United Kingdom law), insofar as such statements constitute a summary of the
legal matters or documents referred to therein, fairly summarize, in all
material respects, the matters or documents therein described (it being
understood such opinion goes only to the specific matters addressed
therein);
(viii) the statements set forth in the Prospectus in the first three
sentences of the second full paragraph under "Description of Debt
Securities and Guarantees--Global Securities in Bearer Form--Issuance of
Definitive Debt Securities" and under the heading "Taxation--United Kingdom
Tax Considerations", insofar as such statements constitute a summary of the
legal matters referred to therein, fairly summarize, in all material
respects, the matters or documents therein described (it being understood
such opinion goes only to the specific matters addressed therein);
(ix) there is no United Kingdom stamp duty, value-added tax or any
other tax or duty payable by or on
<PAGE>
20
behalf of the Underwriters, Crown UK or the Guarantor in connection with
the authorization, issuance, sale and delivery of any Securities of Crown
UK and the Guarantor's guarantee (the "Guarantee") thereof in the manner
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(x) in any action or proceeding arising out of the Terms Agreement
(including the provisions of this Agreement), the Indenture, the Securities
or any Guarantees in a United Kingdom court of competent jurisdiction, such
court would uphold as a valid choice of law New York law as the proper law
of the Terms Agreement (including the provisions of this Agreement), the
Indenture, the Securities and any Guarantees except as otherwise provided
herein or therein, if it is a bona fide choice and there are no reasons for
avoiding such choice on grounds of public policy;
(xi) the submission by Crown UK to the jurisdiction of any United
States Federal or state court sitting in the County of New York and the
designation of the law of the State of New York to apply to the Terms
Agreement (including the provisions of this Agreement), the Indenture, the
Securities and any Guarantees is, to the extent it constitutes a valid and
binding obligation of Crown UK according to the applicable laws of the
State of New York and the Federal laws of the United States, a valid and
legally binding obligation of Crown UK;
(xii) Crown UK has the power to submit, and has taken all necessary
corporate action to submit, to the jurisdiction of any United States or New
York State court in the Borough of Manhattan, The City of New York, New
York, and to appoint CT Corporation System as its authorized agent for the
purposes and to the extent described in Section 1.13 of the Indenture.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the laws of the United Kingdom.
(g) The Underwriters shall have received an opinion, dated the
Closing Date, of Jeantet & Associes,
<PAGE>
21
special French counsel for Crown and Crown France, subject to such assumptions,
limitations and qualifications as may be reasonably acceptable to the
Underwriters, to the effect that:
(i) Crown France has been duly organized and is validly existing
under the laws of its applicable jurisdiction, with corporate power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged as described in the Prospectus;
(ii) the Indenture has been duly authorized and delivered by Crown
France; any Securities of Crown France other than any Contract Securities
of Crown France have been duly executed and issued by Crown France; the
Indenture, assuming due authorization, execution and delivery by the
Trustee, Crown and Crown UK, constitutes, and any Securities of Crown
France other than any Contract Securities of Crown France, when
authenticated by the Trustee and sold pursuant to the Underwriting
Agreement, will constitute, and any Contract Securities of Crown France,
when executed, authenticated and issued in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will constitute,
valid and legally binding obligations of Crown France enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iii) no consent, approval, authorization or other action by or filing
with any French governmental agency or French court having jurisdiction
over Crown France is required to be obtained by Crown France in connection
with the execution and delivery of the Terms Agreement (including the
provisions of this Agreement) by Crown France or the consummation of the
transactions contemplated by the Terms Agreement (including the provisions
of this Agreement), except such as have been obtained and made under French
law and such as may be required pursuant to foreign securities laws;
(iv) the execution, delivery and performance by Crown France of the
Indenture, the execution, delivery and performance by Crown France of the
Terms Agreement
<PAGE>
22
(including the provisions of this Agreement) and any Delayed Delivery
Contracts of Crown France and the sale of any Securities of Crown France
contemplated by the Terms Agreement (including the provisions of this
Agreement) do not (a) conflict with or result in a violation of any of the
provisions of the statuts of Crown France, (b) conflict with or violate in
any material respect any French law, rule or regulation, or, to such
counsel's knowledge, any order, judgment or decree known to such counsel
that is applicable to Crown or Crown France or by which any property or
assets of Crown or Crown France is or may be bound (other than fraudulent
transfer laws and bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, as to which such counsel need not express any opinion) or (c) to
such counsel's knowledge, result in a material breach of any of the terms
or provisions of, or constitute a default under, any material loan or
credit agreement, indenture, deed of trust, mortgage, note or other
agreement or instrument known to such counsel to which Crown or Crown
France is a party or by which it or any of its properties or assets is or
may be bound;
(v) the Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts of Crown France have been duly
authorized and executed by Crown France;
(vi) the statements set forth or referred to in the Prospectus under
the headings (A) "The Subsidiary Issuers--Enforceability of Certain Civil
Liabilities" (to the extent such statements relate to Crown France or
French law), and (B) "Description of Debt Securities and Guarantees--
Limitations Affecting Security Holders" (to the extent such statements
relate to Crown France or French law), insofar as such statements
constitute a summary of the legal matters or documents referred to therein,
are, in all material respects, true and correct (it being understood such
opinion goes only to the specific matters addressed therein);
(vii) the statements set forth or referred to in the Prospectus under
the heading "Taxation--French Tax Considerations", insofar as such
statements constitute a summary of the legal matters referred to therein,
are, in all material respects, true and correct (it being understood such
opinion goes only to the specific matters addressed therein);
<PAGE>
23
(viii) there is no French stamp duty, value-added tax or any other tax
or duty payable by or on behalf of the Underwriters, Crown France or the
Guarantor in connection with the authorization, issuance, sale and delivery
of any Securities of Crown France and the Guarantees thereof in the manner
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(ix) in any action or proceeding arising out of the Terms Agreement
(including the provisions of this Agreement), the Indenture, the Securities
or any Guarantees in a French court of competent jurisdiction, such court
would give effect to the choice of New York law as the proper law of the
Terms Agreement (including the provisions of this Agreement), the
Indenture, the Securities and any Guarantees except as otherwise provided
herein or therein;
(x) the submission by Crown France to the jurisdiction of any United
States Federal or state court sitting in the County of New York and the
designation of the law of the State of New York to apply to the Terms
Agreement (including the provisions of this Agreement), the Indenture, the
Securities and any Guarantees is, to the extent it constitutes a valid and
binding obligation of Crown France according to the applicable laws of the
State of New York and the Federal laws of the United States, a valid and
legally binding obligation of Crown France;
(xi) Crown France has the power to submit, and has taken all necessary
corporate action to submit, to the jurisdiction of any United States or New
York State court in the Borough of Manhattan, The City of New York, New
York, and to appoint CT Corporation System as its authorized agent for the
purposes and to the extent described in Section 1.13 of the Indenture.
In rendering such opinion, such counsel will state that their opinion
is limited to matters governed by the laws of France.
(h) The Underwriters shall have received an opinion, dated the
Closing Date, of Richard L. Krzyzanowski,
<PAGE>
24
Esq., Executive Vice President, General Counsel and Secretary to Crown, subject
to such assumptions, limitations and qualifications as may be reasonably
acceptable to the Underwriters,to the effect that:
(i) each of Crown and its material subsidiaries listed on Schedule I
hereto is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with
corporate power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in the
Registration Statement; and each of Crown and such material subsidiaries is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not
have a material adverse effect on Crown and its subsidiaries, taken as a
whole.
(ii) no consent, approval, authorization or order of, or filing with,
any United States Federal or Pennsylvania governmental agency or body or
Pennsylvania court having jurisdiction over the Company or the Guarantor or
any of their properties is required to be made by the Company or the
Guarantor for the execution and delivery of the Terms Agreement (including
the provisions of this Agreement) by the Company and the Guarantor or the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), except such as have been
obtained and made under the Act and the Trust Indenture Act and the
Exchange Act and, in each case, the rules and regulations thereunder and
such as may be required pursuant to the undertaking in clause (3) of Item
17 of the Registration Statement and under state securities laws and blue
sky laws;
(iii) the execution, delivery and performance by the Issuers (assuming
due execution and delivery by the Subsidiary Issuers) and the Guarantor of
the Indenture, the execution, delivery and performance by the Company
(assuming due execution and delivery by any applicable Subsidiary Issuer)
and the Guarantor of the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the sale of the
Securities contemplated by the Terms Agreement (including the provisions of
this Agreement), will not result in a material breach or violation of any
of the terms and provisions of, or constitute a default under,
<PAGE>
25
any United States Federal or Pennsylvania statute, rule, regulation or
order of any governmental agency or body or any court having jurisdiction
over Crown or the Guarantor, or any subsidiary thereof or any of their
properties, or any material agreement or instrument to which Crown or
the Guarantor or any subsidiary thereof is subject, or the Articles of
Incorporation or By-laws of Crown or the Guarantor; and, to the best of
such counsel's knowledge, neither the Company nor the Guarantor nor any of
the material subsidiaries listed on Schedule 1 hereto is in violation of
its Articles of Incorporation or Certificate of Incorporation or By-laws,
or in material default under any material agreement, indenture or
instrument; and
(iv) except as disclosed in or incorporated by reference in the
Registration Statement, there is no action, suit or proceeding which has
been served upon Crown or any of its subsidiaries or of which any of
their properties or assets is the subject that is now pending, or to such
counsel's knowledge, overtly threatened, against or affecting the Company
or any of its subsidiaries or any of their properties or assets that, if
adversely determined, would have a material adverse effect on Crown or its
subsidiaries, taken as a whole; and such counsel is not aware of any
material contracts or other material documents or legal or governmental
proceedings which are required to be filed as exhibits to the Registration
Statement by the Act or the Exchange Act which have not been so filed;
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal laws of the United States of America
and laws of the Commonwealth of Pennsylvania.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date to the
effect that (a) each document filed by Crown under the Exchange Act and
incorporated by reference in the Registration Statement and each amendment or
supplement thereto, as of their respective dates or as of the date of any such
amendment or supplement thereto, (other than the financial statements (including
pro forma financial statements and notes to financial statements or pro forma
financial statements) and related schedules and other financial, accounting or
statistical information
<PAGE>
26
included in or excluded from such documents, as to which such counsel need not
express an opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the Exchange Act and the rules and
regulations thereunder and (b) no facts have come to the attention of such
counsel which lead him to believe that (I) the Registration Statement as of its
effective date and as of the date of the Terms Agreement contained an 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 (other than the information omitted therefrom in reliance on Rule
430A), or (II) the Prospectus as amended or supplemented, as of its date and as
of the Closing Date, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need not express a belief as to
any financial statements (including pro forma financial statements and notes to
financial statements or pro forma financial statements) and related schedules,
and other financial, accounting or statistical information included in or
excluded from the Registration Statement or the Prospectus.
(i) The Underwriters shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of Crown, the validity of the
Securities, the Registration Statement, the Prospectus and other related matters
as the Underwriters may require, and the Issuers shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon matters. In rendering such opinion, Cravath, Swaine & Moore may rely as to
the incorporation of Crown and all other matters governed by Pennsylvania law
upon the opinion of Dechert Price & Rhoads referred to above.
(j) The Underwriters shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal financial
or accounting officer of Crown in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company and the Guarantor in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on
<PAGE>
27
the Closing Date, that the Company and the Guarantor have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the financial position or results of
operations of the Company or the Guarantor and their subsidiaries except as set
forth in or contemplated by the Prospectus.
The Company and the Guarantor will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
they reasonably request.
6. Indemnification and Contribution. (a) The Company and the
---------------------------------
Guarantor will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that such indemnity with respect to the Prospectus shall not
- -------- -------
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased Securities which are the subject thereof to
the extent that any such loss, claim, damage or liability results from the fact
that such Underwriter failed to send or give a copy of the Prospectus (as
amended or supplemented) to such person at or prior to the confirmation of the
sale of such Securities to such person in any case
<PAGE>
28
where such delivery is required by the Act, if copies thereof have been
previously furnished to such Underwriter by or on behalf of the Company or the
Guarantor; provided, further, that the Company and the Guarantor will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by any Underwriter through the Representatives,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of (A) the last paragraph of
text on the cover page of the Prospectus Supplement concerning the terms of the
offering by the Underwriters, (B) the first paragraph on page S-3 of the
Prospectus Supplement concerning over-allotment and stabilization by the
Underwriters and (C) the text under the caption "Underwriting" in the Prospectus
Supplement (collectively, the "Underwriters' Information").
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to the Underwriters' Information, and will reimburse any
legal or other expenses reasonably incurred by the Company or the Guarantor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any
<PAGE>
29
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above or to the extent that the indemnifying party was not
adversely affected by such omission. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall 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 and the Guarantor on the one hand and the Underwriters on the other
from the offering of the Securities 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 and the Guarantor on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and the
Guarantor bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission of alleged omission to state a
<PAGE>
30
material fact relates to information supplied by the Company or the Guarantor on
the one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities 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 or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter 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 Underwriters obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantor under this
Section shall be in addition to any liability which the Company or the Guarantor
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company or
the Guarantor, to each officer of the Company or the Guarantor who has signed
the Registration Statement and to each person, if any, who controls the Company
or the Guarantor within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
------------------------
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements
<PAGE>
31
satisfactory to the Company and the Guarantor for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the nondefaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under this
Agreement and the Terms Agreement, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representatives and to the Company and the Guarantor for the purchase of such
Securities by other persons are not made within 36 hours after such default,
such Terms Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Company or the Guarantor, except as provided in
Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amount of the Securities set forth
opposite their names in the Terms Agreement as a result of Delayed Delivery
Contracts entered into by the Company and the Guarantor.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
----------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers, the Guarantor or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Company,
the Guarantor or any of their respective representatives, officers or directors
or any controlling person and will survive delivery of and payment for the
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if
for any reason the purchase of the Securities by the Underwriters under the
Terms Agreement is
<PAGE>
32
not consummated, the Company and the Guarantor shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 4 and the
respective obligations of the Company, the Guarantor and the Underwriters
pursuant to Section 6 shall remain in effect. If this Agreement is terminated
by the Underwriters by reason of (a) a breach of a representation, warranty or
agreement by the Company or the Guarantor contained in this Agreement or (b) any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company or the Guarantor or their
subsidiaries taken as a whole which materially impairs the investment quality of
the Securities, the Company or the Guarantor will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
--------
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company and the Guarantor in writing
for the purpose of communications hereunder or, if sent to Crown, will be
mailed, delivered or telegraphed and confirmed to it at 9300 Ashton Road,
Philadelphia, Pennsylvania 19136, Attention: Vice President and Treasurer, or,
if sent to Crown UK, will be mailed, delivered or telegraphed and confirmed to
it at Downsview Road, Wantage, Oxon, United Kingdom OX12 9BL, or, if sent to
Crown France, will be mailed, delivered or telegraphed and confirmed to it at Le
Colisee I, rue Fructidor, 75830 Paris Cedex 17, France.
10. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the Company and the Guarantor and such Underwriters as are
identified in Terms Agreements and their respective successors and the officers
and directors and controlling persons referred to in Section 6, and no other
person will have any right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
---------------
governed by, and construed in accordance with, the laws of the State of New
York.
<PAGE>
Exhibit 4.2
THIS BEARER SECURITY DEPOSITARY AGREEMENT is made as
of , 1996 (this "Agreement") by and between CROWN CORK &
SEAL COMPANY, INC., a Pennsylvania corporation (the "Company"),
CROWN CORK & SEAL FINANCE PLC, a public limited company organized
under the laws of England and Wales (the "Issuer") and THE BANK
OF NEW YORK, a New York banking corporation, as Bearer Security
Depositary (the "Bearer Security Depositary").
ARTICLE I
Definitions and Other General Provisions
----------------------------------------
SECTION 1.01. Definitions. Terms not defined herein have the
------------
meanings ascribed to them in the Indenture. The following terms, as used
herein, have the following meanings:
"Bearer Security Depositary" means the party named as such in this
--------------------------
Agreement or its nominee or the custodian of either until a successor shall have
become such pursuant to Section 3.08 hereof, and thereafter "Bearer Security
Depositary" shall mean such successor or its nominee or the custodian of either.
"Book-Entry Interest" means beneficial interests in the Notes that
-------------------
will be shown on records maintained in book-entry form by the Depositary.
"Book-Entry Register" has the meaning ascribed thereto in Section 2.03
-------------------
hereof.
"Business Day" means each day that is not a Legal Holiday.
------------
"Certificateless Depositary Interests" means, with respect to any
------------------------------------
series of Notes, the beneficial interests that shall at all times prior to the
issuance of Definitive Notes in respect thereof represent the right to receive
100% of the principal and any premium, interest and Additional Amounts in
respect of the underlying Global Note, and that is issued to the Depositary or
its nominee by the Bearer Security Depositary.
"Corporate Trust Office" means the office of the Bearer Security
----------------------
Depositary in the Borough of Manhattan, The City of New York, at which any
particular time its corporate trust business shall be principally administered,
which at the date hereof is located at 101 Barclay Street, Floor 21 West, New
York, NY 10286.
"Definitive Notes" means, with respect to any series of Notes, the
----------------
Notes in definitive form issued pursuant to Section 3.12 of the Indenture.
"Depositary" means The Depository Trust Company or its nominee, or any
----------
successor thereto, as the Holder of the Certificateless Depositary Interests as
recorded on the Book-Entry Register.
<PAGE>
2
"Global Notes" means the Global Securities in bearer form issued
------------
pursuant to Section 3.12 of the Indenture.
"Holder" means the Depositary.
------
"Indenture" means the indenture dated as of , 1996, among
---------
the Company, the Subsidiary Issuers named therein and The Bank of New York, as
Trustee, as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental thereto entered into pursuant
to the applicable provisions thereof, including for all purposes to the extent
applicable, the provisions of the TIA that are deemed to be a part of and govern
such instrument.
"Interest Payment Date" means and of each
---------------------
year, commencing on , 1997.
"Issuer" means the party named as such in this Agreement until a
------
successor replaces it pursuant to the applicable provisions of the Indenture
and, thereafter, means the successor.
"Issuer Order" means a written order or request signed in the name of
------------
the Issuer by its Chief Executive or Deputy Chief Executive, and by its Chief
Financial Officer, Treasurer, Assistant Treasurer, Secretary or any other
officer so authorized and delivered to the Trustee.
"Legal Holiday" has the meaning ascribed thereto in the Indenture.
-------------
"Letter of Representations" means the Letter of Representations to the
-------------------------
Depositary dated , 1996, from the Bearer Security Depositary and the
Issuer.
"Note" means any % Note due 2003 or % Note due 2006 of the
----
Issuer issued under the Indenture.
"Opinion of Counsel" means a written opinion from legal counsel, who
------------------
may be an employee of or counsel to the Issuer and who shall otherwise be
satisfactory to the Bearer Security Depositary.
"Responsible Officer", with respect to the Bearer Security Depositary,
-------------------
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Bearer
Security Depositary customarily performing functions similar to those performed
by any of the above-designated officers and also means, with respect to a
particular corporate trust or agency matter, any other officer to whom such
matter is referred because of his or her knowledge and familiarity with the
particular subject.
<PAGE>
3
SECTION 1.02. Rules of Construction. Unless the context otherwise
----------------------
requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) "including" means including without limitation; and
(d) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
Book-Entry Interests
--------------------
SECTION 2.01 Deposit of the Global Notes. The Bearer Security
----------------------------
Depositary hereby accepts custody of the Global Notes from the Trustee and shall
act as Bearer Security Depositary in accordance with the terms of this
Agreement. The Bearer Security Depositary shall hold each such Global Note at
its Corporate Trust Office in The City of New York or at such place or places as
it shall determine with the consent of the Issuer and shall issue the
Certificateless Depositary Interests in accordance with the Letter of
Representations.
SECTION 2.02. Book-Entry System. (a) Upon acceptance by the
------------------
Depositary of the Certificateless Depositary Interests for entry into its book-
entry settlement system in accordance with the terms of the Letter of
Representations, Book-Entry Interests will be issued by the Depositary and
traded through the Depositary's book-entry system, and ownership of such Book-
Entry Interests shall be shown in, and the transfer of such ownership shall be
effected only through, records maintained by (i) the Depositary or its
successors or (ii) institutions that have accounts with the Depositary or its
successors. Book-Entry Interests shall be transferable only as units
representing authorized denominations of the Notes.
(b) The Certificateless Depositary Interests shall be issuable only
to the Depositary, or successors of the Depositary or their respective nominees.
Except as provided in Section 2.07, no owner of beneficial interests in the
Certificateless Depositary Interests shall be entitled to receive a Note on
account of such beneficial interest, and such beneficial owner's interest
therein shall be shown only in accordance with the procedures of the Depositary
as set forth in the Letter of Representations.
SECTION 2.03. Registration of Transfer of the Certificateless
-----------------------------------------------
Depositary Interests. The Bearer Security Depositary agrees to maintain at the
- ---------------------
Bearer Security Depositary's Corporate Trust Office a register (the "Book-Entry
----------
Register") in which the Bearer Security Depositary shall (i) record the
- --------
Depositary as the initial registered owner of the Certificateless Depositary
Interests and (ii) record the registration and transfer of the Certificateless
Depositary Interests. The Certificateless Depositary Interests cannot be
transferred unless such transfer is recorded on the Book-Entry Register. The
Bearer Security Depositary shall not constitute the agent of the Issuer for any
other purpose and, in particular, it shall not constitute the agent of the
Issuer in relation to any payments it may make to
<PAGE>
4
owners of the Certificateless Depositary Interests or be authorized to undertake
any obligations on behalf of the Issuer.
The foregoing paragraph shall not (i) impose an obligation on the
Bearer Security Depositary to record the interests in or transfers of Book-Entry
Interests held by institutions that have accounts with the Depositary or its
successors or Persons that may hold Book-Entry Interests through such
institutions and (ii) restrict transfers of such Book-Entry Interests held by
such institutions or persons. The person in whose name the Certificateless
Depositary Interests are registered on the Book-Entry Register shall be the
"Holder" of the Certificateless Depositary Interests for the purposes of this
Agreement. The Bearer Security Depositary shall treat the Holder or its nominee
or their respective successors as the absolute owner thereof for all purposes
whatsoever and shall not be bound or affected by any notice to the contrary,
other than an order of a court having jurisdiction over the Bearer Security
Depositary.
SECTION 2.04. Transfer of the Global Notes. The Bearer Security
-----------------------------
Depositary shall hold each Global Note in custody for the benefit of the
Depositary. The Bearer Security Depositary shall not transfer or lend the
Global Notes or any interest therein, except that the Bearer Security Depositary
may transfer the Global Notes as a whole to a successor Bearer Security
Depositary with the consent of the Issuer. Notwithstanding the foregoing, the
Depositary may not under any circumstances request the Bearer Security
Depositary to surrender or deliver the Global Notes to the Depositary. If (i)
the Depositary notifies the Issuer that it is unwilling or unable to continue as
Depositary with respect to the Certificateless Depositary Interests or if at any
time it is unable to continue as, or ceases to be, a clearing agency under the
Exchange Act and a successor Depositary registered as a clearing agency under
the Exchange Act is not appointed by the Issuer within 90 days; (ii) the Bearer
Security Depositary notifies the Issuer and the Trustee under Section 3.08
hereof that it is at any time unwilling or unable to continue as Bearer Security
Depositary and no successor Bearer Security Depositary has been appointed by the
Issuer within 90 days of such notification or (iii) the Issuer shall request
that Definitive Notes be issued, then the Bearer Security Depositary will
promptly notify the Trustee and request the Trustee to issue Definitive Notes in
such names and denominations as the Holder shall specify in accordance with
Section 3.12 of the Indenture and the Bearer Security Depositary agrees that in
such event it will promptly surrender the Global Notes held by it to the Trustee
in connection with such exchange and that such Global Notes will be cancelled
upon issuance of such Definitive Notes.
SECTION 2.05. Cancellation. If the Global Notes are surrendered for
-------------
payment, or for redemption or purchase of Notes evidenced thereby or for
exchange for Definitive Notes to any Person other than the Trustee, such Global
Notes shall, subject to Section 3.09, be delivered to the Trustee for
cancellation.
SECTION 2.06. Payments in Respect of the Certificateless Depositary
-----------------------------------------------------
Interests and Global Notes. (a) Whenever the Bearer Security Depositary shall
- ---------------------------
receive from the Trustee (or other paying agent under the Indenture) any payment
on the Global Notes, such payments shall be distributed promptly to the Holder
on the payment date for the Global Notes. So long as the Depositary is the
Holder, such payments shall be made in accordance with the Letter of
Representations.
<PAGE>
5
(b) The Bearer Security Depositary will forward to the Company, the
Issuer or their agents such information from its records as such persons may
reasonably request to enable such persons to file necessary reports with
governmental agencies, and the Bearer Security Depositary, the Company, the
Issuer or their agents may (but shall not be required to) file any such reports
necessary to obtain benefits under any applicable tax treaties for the Holder
of, or beneficial owners of interests in, the Certificateless Depositary
Interests.
SECTION 2.07. Change in Principal Amount of Global Notes. (a) In
-------------------------------------------
the event that the Issuer exercises any right of redemption in respect of, or is
required to purchase, any Notes constituting a part of a Global Note pursuant to
the Indenture, the Bearer Security Depositary shall promptly deliver such Global
Note to the Trustee and request the Trustee to endorse Schedule A to such Global
Note to reflect the reduction in the principal amount of such Global Note as a
result of such redemption or purchase. The redemption price or purchase price
payable in connection with the redemption or purchase of a portion of such
Global Note shall be equal to the amount received by the Bearer Security
Depositary in respect of the aggregate principal amount of the Notes so redeemed
or purchased.
(b) If an Event of Default (as defined in the Indenture) occurs and
is continuing, the Bearer Security Depositary shall, at the request of the
Holder of, or beneficial owner of an interest in a Certificateless Depositary
Interest (such request of the beneficial owner to be given only through the
Holder), promptly deliver the Global Note relating to such Certificateless
Depositary Interest to the Trustee and request that the Trustee exchange all or
part of such Global Note for one or more Definitive Notes registered as
specified by the Holder and endorse Schedule A to such Global Note to reflect
the reduction in principal amount of such Global Note resulting from such
exchange; provided that the principal amount at maturity of such Definitive
--------
Notes and of such Global Note after such exchange shall be $1,000 or integral
multiples thereof.
(c) Whenever the principal amount at maturity of a Global Note held
by the Bearer Security Depositary is changed by the Trustee the Bearer Security
Depositary shall notify the Depositary of the corresponding change in the
principal amount of the related Certificateless Depositary Interest.
SECTION 2.08. Record Date. (a) Any interest payment to be made in
------------
respect of the Global Notes shall be made to the Holder who is registered on the
Book-Entry Register at the close of business (whether or not a business day) on
the or immediately preceding each Interest Payment
Date, as the case may be.
(b) Whenever the Bearer Security Depositary shall receive notice of
any action to be taken by the Holder of a Global Note or holders of interests
therein, or whenever the Bearer Security Depositary otherwise deems it
appropriate in respect of any other matter, the Bearer Security Depositary shall
fix a record date for the determination of the Holder who shall be entitled to
take any such action or to act in respect of any such matter.
SECTION 2.09. Action in Respect of the Certificateless Depositary
---------------------------------------------------
Interests or the Global Notes. (a) Not later than 10 days after receipt by the
- ------------------------------
Bearer Security Depositary of notice of any solicitation of consents or request
for a waiver or other action by the Holder of a Global Note or
<PAGE>
6
holders of interests therein under this Agreement or the Indenture, the Bearer
Security Depositary shall mail, at the expense of the Company, to the Holder a
notice containing (i) such information as is contained in such notice, (ii) a
statement that the Holder at the close of business on a specified record date
(established in accordance with Section 2.08 hereof) will be entitled, subject
to the provisions of or governing the Certificateless Depositary Interests or
Global Notes, as the case may be, to instruct the Bearer Security Depositary as
to the consent, waiver or other action, if any, pertaining to the
Certificateless Depositary Interests or Global Notes, as the case may be, and
(iii) a statement as to the manner in which such instructions may be given.
Upon the written request of the Holder received on or before the date
established by the Bearer Security Depositary for such purpose, the Bearer
Security Depositary shall endeavor insofar as practicable and permitted under
the provisions of or governing the Certificateless Depositary Interests or
Global Notes, as the case may be, to take such action regarding the requested
consent, waiver or other action in respect of such Certificateless Depositary
Interests or Global Notes, as the case may be, in accordance with any
instructions set forth in such request. The Bearer Security Depositary shall
not itself exercise any discretion in the granting of consents or waivers or the
taking of any other action in respect of the Certificateless Depositary
Interests or Global Notes.
(b) The Holder may direct the time, method and place of conducting
any proceeding for any remedy available to the Bearer Security Depositary or of
exercising any trust or power conferred on the Bearer Security Depositary.
However, the Bearer Security Depositary may refuse to follow any direction that
conflicts with law or this Agreement or the Indenture or, subject to Section
3.01 hereof, that the Bearer Security Depositary determines would involve it in
personal liability.
SECTION 2.10. Changes Affecting the Global Notes. Upon any
-----------------------------------
reclassification of the Global Notes or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which the Issuer is a party, any securities that shall be received by the
Bearer Security Depositary in exchange for or in respect of a Global Note shall
be treated as a new Global Note under this Agreement and any corresponding
Certificateless Depositary Interest shall thenceforth represent such new
securities so received.
SECTION 2.11. Surrender of the Global Notes. In the event of the
------------------------------
redemption, payment or purchase in full of all the Notes represented by the
Global Notes, then the Global Notes shall become void and the Bearer Security
Depositary shall surrender the Global Notes to the Trustee for cancellation.
SECTION 2.12. Reports. The Bearer Security Depositary shall
--------
immediately (and in no event later than 10 days from receipt) send to the Holder
a copy of any notices, reports and other communications received from the
Company or the Issuer that are received by the Bearer Security Depositary as
holder of the Global Notes.
SECTION 2.13. Additional Amounts. All payments made by the Bearer
-------------------
Security Depositary pursuant to this Agreement in respect of the Certificateless
Depositary Interests shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature (collectively, "Taxes") imposed or levied by or on
behalf of the United Kingdom or any political subdivision thereof or any
authority having power
<PAGE>
7
to tax therein (each a "U.K. Tax Authority"), unless such Taxes are required by
law to be withheld or deduced. In that event, the Bearer Security Depositary
will pay by way of additional interest such additional amounts (the "Additional
Amounts") as will result (after deduction of such Taxes payable in respect of
such Additional Amounts) in the payment to the Holder of the amounts which would
have been payable in respect of the Certificateless Depositary Interests had no
such withholding or deduction been required (subject to the limitations
contained in the Note, such limitations to be applied for these purposes by
treating the owner of any interest in the Certificateless Depositary Interests
as a holder or beneficial owner for purposes of the limitations contained in the
Note). Notwithstanding anything to the contrary provided above, the Bearer
Security Depositary shall pay or cause to be paid any Additional Amounts only
out of funds that shall be received by it from the Company or the Issuer for
that purpose.
At least 10 days prior to the first date on which payment of
principal, premium (if any), interest and Additional Interest (as defined in the
Indenture) (if any) on the Certificateless Depositary Interests is to be made,
and at least 10 days prior to any subsequent such date if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Issuer will furnish the Bearer Security Depositary with an
Officers' Certificate instructing the Bearer Security Depositary whether such
payment of principal, premium (if any), interest or Additional Interest (if any)
on such Certificateless Depositary Interests shall be made to the Holder without
withholding for or on account of any tax, assessment or other governmental
charge. If any such withholding shall be required, then such Officers'
Certificate shall specify the amount required to be withheld on such payments to
the Holder. The Bearer Security Depositary shall have no responsibility for
determining whether the Holder or any owner of a Global Note is entitled to the
payment of Additional Amounts in accordance with the preceding paragraph, but
shall be entitled to rely conclusively for this purpose on an Officers'
Certificate or on certifications from the Depositary, which need only specify
the amount of Additional Amounts payable to the Holder, net of amounts to which
the Holder or any owner of a Global Note is not entitled in accordance with the
preceding paragraph. The Company and the Issuer shall, jointly and severally,
indemnify the Bearer Security Depositary for, and hold it harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on its part arising out of or in connection with actions taken or omitted by it
in reliance on any Officers' Certificate furnished to it pursuant to this
Section 2.13.
ARTICLE III
The Bearer Security Depositary
------------------------------
SECTION 3.01. Certain Duties and Responsibilities. (a) The Bearer
------------------------------------
Security Depositary undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement.
<PAGE>
8
(b) No provision of this Agreement shall be construed to relieve the
Bearer Security Depositary from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) the duties and obligations of the Bearer Security Depositary with
respect to the Certificateless Depositary Interests and the Global Notes
shall be determined solely by the express provisions of this Agreement and
the Bearer Security Depositary shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Bearer Security Depositary; and
(ii) in the absence of bad faith on its part, the Bearer Security
Depositary may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Bearer Security Depositary and
conforming to the requirements of this Agreement, but in the case of any
such statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Bearer Security Depositary,
the Bearer Security Depositary shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Bearer Security Depositary shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Bearer Security
Depositary, unless it shall be proved that the Bearer Security Depositary was
negligent in ascertaining the pertinent facts.
(d) The Bearer Security Depositary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holder relating to the time, method and place of
conducting any proceeding for any remedy available to the Bearer Security
Depositary, or exercising any power conferred upon the Bearer Security
Depositary, under this Agreement or the Indenture.
(e) No provision of this Agreement shall require the Bearer Security
Depositary to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Bearer Security Depositary shall be subject to the
provisions of this Section 3.01.
(g) The Bearer Security Depositary owes no fiduciary duties to any
person by virtue of this Agreement except as expressly set forth herein.
SECTION 3.02. Notice of Default. Within 90 days after the occurrence
------------------
of any Event of Default with respect to a Global Note (a "Note Default") of
------------
which a Responsible Officer of the Bearer Security Depositary assigned to its
corporate trust department has actual knowledge, the
<PAGE>
9
Bearer Security Depositary shall transmit by mail to the Holder in the manner
provided in Section 4.02 hereof, notice of such Note Default, unless such Note
Default shall have been cured or waived.
SECTION 3.03. Certain Rights of Bearer Security Depositary. Subject
---------------------------------------------
to the provisions of Section 3.01 hereof:
(a) the Bearer Security Depositary may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or
Issuer Order and any resolution of the Board of Directors of the Issuer, as
the case may be, may be sufficiently evidenced by a Board Resolution;
(c) the Bearer Security Depositary may consult with counsel of its
selection and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect to any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Bearer Security Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document, but the Bearer Security Depositary, in
its discretion, may make reasonable further inquiry or investigation into
such facts or matters directly related to the issuance of the Global Notes
and if the Bearer Security Depositary shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, at reasonable times during normal
business hours, personally or by agent or attorney, but not more than once
in any twelve month period;
(e) the Bearer Security Depositary may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys;
(f) the Bearer Security Depositary shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement or the
Indenture at the request, order or direction of the Holder pursuant to this
Agreement, unless the Holder shall have offered to the Bearer Security
Depositary reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction; provided that such request, order or direction shall not expose
--------
the Bearer Security Depositary to personal liability; and
<PAGE>
10
(g) whenever in the administration of its duties under this Agreement
the Bearer Security Depositary shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting
any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Bearer Security Depositary, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Bearer Security Depositary, and such certificate, in the absence of
negligence or bad faith on the part of the Bearer Security Depositary,
shall be full warrant to the Bearer Security Depositary for any action
taken, suffered or omitted by it under the provisions of the Agreement,
upon the faith thereof.
SECTION 3.04. Not Responsible for Recitals or Issuance of Notes. The
--------------------------------------------------
recitals contained in the Indenture and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
or the Guarantor, as the case may be, and the Bearer Security Depositary assumes
no responsibility for their correctness. The Bearer Security Depositary makes
no representations as to the validity or sufficiency of this Agreement or of the
Notes. The Bearer Security Depositary shall not be accountable for the use or
application by the Issuer of the proceeds with respect to the Notes.
SECTION 3.05. Money Held in Trust. Money held by the Bearer Security
-------------------
Depositary in trust hereunder need not be segregated from other funds held by
the Bearer Security Depositary, except to the extent required by law. The
Bearer Security Depositary shall be under no obligation to invest or pay
interest on any money received by it hereunder, except as otherwise agreed in
writing with the Issuer. Any interest accrued on funds deposited with the
Bearer Security Depositary under this Agreement shall be paid to the Issuer from
time to time and the Holder shall have no claim to any such interest.
SECTION 3.06. Compensation and Reimbursement. The Company and the
-------------------------------
Issuer, jointly and severally, agree:
(a) to pay to the Bearer Security Depositary from time to time such
compensation as the Company, the Issuer and the Trustee shall from time to
time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Bearer Security Depositary and any predecessor Bearer Security Depositary
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Bearer Security Depositary in accordance with any
provision of this Agreement (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Bearer Security Depositary and any predecessor
Bearer Security Depositary for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this Agreement and its duties hereunder, including the costs and expenses
of
<PAGE>
11
defending itself against or investigating any claim of liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
SECTION 3.07. Bearer Security Depositary Required; Eligibility. At
-------------------------------------------------
all times when there is a Bearer Security Depositary hereunder, such Bearer
Security Depositary shall be a corporation organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, having, together with its parent, a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal, state or
District of Columbia authority and willing to act on reasonable terms. Such
corporation shall have its principal place of business in the Borough of
Manhattan, The City of New York, if there be such a corporation in such location
willing to act upon reasonable and customary terms and conditions. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 3.07, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Bearer Security Depositary hereunder shall at all times be the Trustee under the
Indenture, subject to receipt of an Opinion of Counsel that the same Person is
precluded by law from acting in such capacities. If at any time the Bearer
Security Depositary shall cease to be eligible in accordance with the provisions
of this Section 3.07, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 3.08. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Bearer Security Depositary and no
appointment of a successor Bearer Security Depositary pursuant to this Article
shall become effective until (i) the acceptance of appointment by the successor
Bearer Security Depositary in accordance with the applicable requirements of
Section 3.09 hereof or (ii) the issuance of Definitive Notes in accordance with
Section 2.04 or Section 2.07 hereof and the Indenture.
(b) The Bearer Security Depositary may resign with respect to the
Global Notes by giving written notice thereof to the Company, the Issuer and the
Holder, in accordance with Section 4.01 and Section 4.02 hereof, 90 days prior
to the effective date of such resignation. If an instrument of acceptance by a
successor Bearer Security Depositary required by Section 3.09 hereof shall have
been delivered to the Bearer Security Depositary, the Bearer Security Depositary
may be removed at any time upon the filing with it of an instrument in writing
signed on behalf of the Company and the Issuer and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a successor Bearer Security Depositary required by Section 3.09
hereof shall not have been delivered to the Bearer Security Depositary within 30
days after the giving of such notice of resignation, the resigning Bearer
Security Depositary may petition any court of competent jurisdiction for the
appointment of a successor Bearer Security Depositary eligible under this
Article, including without limitation Section 3.07.
(c) If at any time:
(i) the Bearer Security Depositary shall cease to be eligible under
Section 3.07 hereof, or shall cease to be eligible as Trustee under the
Indenture, and shall fail to resign after written request therefor by the
Issuer or by the Holder, or
<PAGE>
12
(ii) the Bearer Security Depositary shall become incapable of acting
with respect to the Certificateless Depositary Interests or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the Bearer
Security Depositary or of its property shall be appointed or any public
officer shall take charge or control of the Bearer Security Depositary or
of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may remove the
Bearer Security Depositary and appoint a successor Bearer Security Depositary,
or (ii) the Holder may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Bearer
Security Depositary and the appointment of a successor Bearer Security
Depositary or Book-Entry Depositaries, unless Definitive Notes have been issued
in accordance with the Indenture. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Bearer Security
Depositary and appoint a successor Bearer Security Depositary.
(d) If the Bearer Security Depositary shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Bearer
Security Depositary for any cause, the Issuer, by Board Resolution, shall
promptly appoint a successor Bearer Security Depositary (other than the Issuer)
and shall comply with the applicable requirements of Section 3.09 hereof. If no
successor Bearer Security Depositary with respect to the Global Notes shall have
been so appointed by the Issuer and accepted appointment in the manner required
by Section 3.09, the Holder may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Bearer Security Depositary eligible under this Article, including
without limitation Section 3.07, unless Definitive Notes have been issued in
accordance with the Indenture.
(e) The Issuer shall give, or shall cause such successor Bearer
Security Depositary to give, notice of each resignation and each removal of a
Bearer Security Depositary and each appointment of a successor Bearer Security
Depositary to the holder in accordance with Section 4.02 hereof. Each notice
shall include the name of the successor Bearer Security Depositary and the
address of its Corporate Trust Office.
SECTION 3.09. Acceptance of Appointment by Successor. (a) In case
---------------------------------------
of the appointment hereunder of a successor Bearer Security Depositary, every
such successor Bearer Security Depositary so appointed shall execute,
acknowledge and deliver to the Issuer and to the retiring Bearer Security
Depositary an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Bearer Security Depositary shall become
effective and such successor Bearer Security Depositary, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Bearer Security Depositary, with like effect
as if originally named as Bearer Security Depositary hereunder; but, on the
request of the Issuer or the successor Bearer Security Depositary, such retiring
Bearer Security Depositary shall, upon payment of all amounts due and payable to
it pursuant to Section 3.06 hereof, execute and deliver an instrument
transferring to such successor Bearer Security Depositary all the rights and
powers of the retiring Bearer Security Depositary and shall duly assign,
transfer and deliver to such successor Bearer Security Depositary all property
and money held by such retiring Bearer Security Depositary hereunder.
<PAGE>
13
(b) Upon request of any such successor Bearer Security Depositary,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Bearer Security Depositary all such
rights, powers and agencies referred to in paragraph (a) of this Section 3.09.
(c) No successor Bearer Security Depositary shall accept its
appointment unless at the time of such acceptance such successor Bearer Security
Depositary shall be eligible under this Article, including without limitation
Section 3.07.
(d) Upon acceptance of appointment by any successor Bearer Security
Depositary as provided in this Section 3.09, the Issuer shall give notice
thereof to the Holder in accordance with Section 4.02 hereof. If the acceptance
of appointment is substantially contemporaneous with the resignation of the
Bearer Security Depositary, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 3.08(b) hereof. If the
Issuer fails to give such notice within 10 days after acceptance of appointment
by the successor Bearer Security Depositary, the successor Bearer Security
Depositary shall cause such notice to be given at the expense of the Issuer.
SECTION 3.10. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Bearer Security Depositary may be
- ---------
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Bearer
Security Depositary shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Bearer Security
Depositary, shall be the successor of the Bearer Security Depositary hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE IV
Miscellaneous Provisions
------------------------
SECTION 4.01. Notices to Bearer Security Depositary or Company. Any
-------------------------------------------------
request, demand, authorization, direction, notice, consent, or waiver or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(a) the Bearer Security Depositary by the Holder, by the Trustee, the
Company or the Issuer shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or
filed in writing and personally delivered or mailed, first-class postage
prepaid, to the Bearer Security Depositary at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or at any other address
previously furnished in writing by the Bearer Security Depositary to the
Holder, the Trustee and the Issuer, or
(b) the Company or the Issuer, by the Bearer Security Depositary or by
the Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing and personally delivered or mailed, first-class postage prepaid to
Crown Cork & Seal Company, Inc., 9300 Ashton Road, Philadelphia, PA
<PAGE>
14
19136, Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Bearer Security Depositary by the
Company.
SECTION 4.02. Notice to Holders; Waiver. Where this Agreement
--------------------------
provides for notice to the Holder of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided or as provided in
the Letter of Representations) if in writing and mailed, first-class postage
prepaid, to the Holder at the address notified to the Bearer Security
Depositary, in each case not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by the Holder shall be filed with the Bearer Security Depositary, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Bearer Security
Depositary shall constitute a sufficient notification for every purpose
hereunder.
SECTION 4.03. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 4.04. Successors and Assigns. All covenants and agreements
-----------------------
in this Agreement and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.05. Separability Clause. In case any provision in this
--------------------
Agreement or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
SECTION 4.06. Benefits of Agreement. Nothing in this Agreement, the
----------------------
Notes, or Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The holders from time to
time of the Global Notes shall be parties to this Agreement and shall be bound
by all of the terms and conditions hereof and of the Indenture and the Notes, by
their acceptance of delivery of the Book-Entry Interests.
SECTION 4.07. GOVERNING LAW. EXCEPT AS OTHERWISE REQUIRED BY
--------------
MANDATORY PROVISIONS OF LAW, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 4.08. Jurisdiction. Each of the Issuer and the Company
-------------
agrees that any legal suit, action or proceeding against it brought by the
Bearer Security Depositary arising out of or
<PAGE>
15
based upon this Agreement may be instituted in any state or Federal court in the
Borough of Manhattan, The City of New York, and waives any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
irrevocably submits to the nonexclusive jurisdiction of such courts in any suit,
action or proceeding. Each of the Issuer and the Company has appointed CT
Corporation, 1633 Broadway, New York, New York 10019, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any legal suit,
action or proceeding arising out of or based upon this Agreement which may be
instituted in any state or Federal court in the Borough of Manhattan, The City
of New York, by the Holder or the Bearer Security Depositary, and expressly
accepts the nonexclusive jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable. Each of the Issuer and the
Company represents and warrants that the Authorized Agent has agreed to act as
said agent for service of process, and Issuer agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company or the Issuer, as applicable.
SECTION 4.09. Counterparts. This Agreement may be executed in any
-------------
number of counterparts by the parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 4.10. Inspection of Agreement. A copy of this Agreement
------------------------
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Bearer Security Depositary for inspection by any
Holder.
SECTION 4.11. Satisfaction and Discharge. This Agreement upon Issuer
---------------------------
Order shall cease to be of further effect, and the Bearer Security Depositary,
at the expense of the Company and the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Agreement, when (i) the
Indenture has been satisfied and discharged pursuant to the provisions thereof
or Definitive Notes have been issued and the Global Notes have been cancelled in
accordance with the provisions of Section 2.05 hereof and the Indenture, (ii)
the Company and the Issuer have paid or caused to be paid all sums payable
hereunder by them and (iii) the Issuer has delivered to the Bearer Security
Depositary an Officer's Certificate and an Opinion of Counsel, stating that all
conditions precedent herein provided relating to the satisfaction and discharge
of this Agreement have been complied with.
SECTION 4.12. Amendments. The Company, the Issuer and the Bearer
-----------
Security Depositary may amend this Agreement without the consent of the
Depositary:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants and agreements of the Bearer Security
Depositary or the Issuer;
(c) to effectuate the assignment of the Bearer Security Depositary's
rights and duties to a qualified successor, as provided herein;
<PAGE>
16
(d) to comply with any requirements of the Securities Act, the
Exchange Act or the Investment Company Act of 1940, as amended, and the
TIA; or
(e) to modify, alter, amend or supplement this Agreement in any other
manner that is not adverse to the Depositary or the holders of Book-Entry
Interests.
Except as set forth in this Section 4.12, no amendment that adversely
affects the Depositary or the holders of Book-Entry Interests may be made to
this Agreement or the Book-Entry Interests without the consent of the Depositary
or the holders of the Book-Entry Interests.
SECTION 4.13. Bearer Security Depositary To Sign Amendments. The
----------------------------------------------
Bearer Security Depositary shall sign any amendment authorized pursuant to
Section 4.12 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Bearer Security Depositary. If it does, the
Bearer Security Depositary may but need not sign it. In signing such amendment
the Bearer Security Depositary shall be entitled to receive indemnity reasonably
satisfactory to it and shall be fully protected in reasonably relying upon, an
Officers' Certificate (which need only cover the matters set forth in clause (a)
below) and an Opinion of Counsel stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) each of the Company and the Issuer has all necessary corporate
power and authority to execute and deliver the amendment and that the
execution, delivery and performance of such amendment has been duly
authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do not
conflict with, or result in the breach of or constitute a default under any
of the terms, conditions or provisions of (i) this Agreement, (ii) the
articles of incorporation of the Company or the Memorandum or Articles of
Association of the Issuer, (iii) any law or regulation applicable to the
Company or the Issuer, (iv) any material order, writ, injunction or decree
of any court or governmental instrumentality applicable to the Company or
the Issuer or (v) any material agreement or instrument to which the Company
or the Issuer is subject; and
(d) such amendment has been duly and validly executed and delivered by
the Company and the Issuer, and this Agreement together with such amendment
constitutes a legal, valid and binding obligation of the Company and the
Issuer enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
<PAGE>
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
CROWN CORK & SEAL COMPANY, INC.,
by
---------------------------------------
Name:
Title:
CROWN CORK & SEAL COMPANY, PLC,
by
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Bearer Security
Depositary,
by
---------------------------------------
Name:
Title:
<PAGE>
[LETTERHEAD OF DECHERT PRICE & RHOADS APPEARS HERE]
December 10, 1996
Crown Cork & Seal Company, Inc.
9300 Ashton Road
Philadelphia, PA 19136
Re: Form S-3 Registration Statement
-------------------------------
Gentlemen:
We have acted as counsel to Crown Cork & Seal Company, Inc. (the
"Company") in connection with the preparation of a Registration Statement on
Form S-3 (Registration No. 333-16869) (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
issuance of an aggregate of up to $1,500,000,000 of debt securities (the "Debt
Securities") of the Company, Crown Cork & Seal Finance PLC, a public limited
company organized under the laws of England and Wales ("Crown Limited"), and
Crown Cork & Seal Finance S.A., a societe anonyme organized under the laws of
the Republic of France ("Crown S.A."; Crown Limited and Crown S.A. are
hereinafter collectively referred to as the "Subsidiaries"; and each of the
Subsidiaries or the Company, as the case may be, is hereinafter referred to as
the "Issuer" with respect to Debt Securities issued by it pursuant to the
indenture hereinafter referred to) pursuant to an indenture in the form filed as
Exhibit 4.1 to the Registration Statement (the "Indenture") among The Bank of
New York, as trustee, the Company, Crown Limited and Crown S.A. Debt Securities
issued by either Subsidiary will be guaranteed by the Company pursuant to a
guarantee provided for under the Indenture (the "Guarantee").
We have examined such corporate records and documents and other
matters as we have deemed necessary in order to render this opinion.
<PAGE>
Crown Cork & Seal Company, Inc.
December 10, 1996
Page 2
In our examination, we have assumed the genuiness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
copies.
Based upon the foregoing, and subject to the limitations set forth
below, it is our opinion that under current law:
1. When the Debt Securities have been duly executed, authenticated
and delivered in accordance with the terms of the Indenture and delivered to the
purchasers thereof against payment therefor in accordance with the procedures
described in the Registration Statement, such Debt Securities will constitute
the legal and binding obligations of the Issuer.
2. When the Guarantee has been duly executed, authenticated and
delivered in accordance with the terms of the Indenture, and the Debt Securities
to which such Guarantee relates have been duly executed, authenticated and
delivered in accordance with the terms of the Indenture and delivered to the
purchasers thereof against payment therefor in accordance with the procedures
described in the Registration Statement, such Guarantee will constitute the
legal and binding obligation of the Company.
Our opinions herein are limited solely to the laws of the United
States of America, the State of New York and the Commonwealth of Pennsylvania,
in each case to the extent applicable, and we express no opinion herein
concerning the laws of any other jurisdiction. We understand that you are
relying on the opinions of Jeantet & Associes and Titmuss Sainer Dechert as to
matters involving the legality and binding nature of the Debt Securities issued
by Crown Limited and Crown S.A., respectively, which are governed by the laws of
the Republic of France and the United Kingdom, respectively, and no opinion is
expressed herein with respect to such matters.
Our opinions herein are subject to the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization or
similar law affecting creditors' rights or debtors' obligations generally and to
general equity principles, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing, and other similar
doctrines affecting the legality and binding nature of obligations or agreements
generally.
Our opinions herein are rendered solely for your benefit in connection
with the transaction contemplated herein. Our opinions herein may not be used
or relied on by any other person, nor may this letter or any copies thereof be
furnished to a third party, filed with a government agency, quoted, cited or
otherwise referred to without our prior written consent, except as noted below.
<PAGE>
Crown Cork & Seal Company, Inc.
December 10, 1996
Page 3
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the reference to this opinion letter under
the caption "Legal Matters" in the prospectus forming a part of the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Sincerely,
DECHERT PRICE & RHOADS
<PAGE>
Exhibit 5.2
[LETTERHEAD OF TITMUSS SAINER DECHERT APPEARS HERE]
Crown Cork & Seal Finance PLC,
Downsview Road,
Wantage,
Oxon OX12 4BP
9 December 1996
Dear Sirs,
Crown Cork & Seal Finance PLC-Debt Securities
---------------------------------------------
We have acted as English solicitors to Crown Cork & Seal Finance PLC, an
English public limited company ("Crown UK"), in connection with the registration
on Form S-3 filed on 26 November 1996 with the Securities and Exchange
Commission (the "Registration Statement"; terms defined in the Registration
Statement being used herein as therein defined) under the US Securities Act of
1933, as amended (the "Act"), relating to the proposed offering of up to US
$1,500,000,000 aggregate principal amount of debt securities of Crown UK, Crown
Cork & Seal Company, Inc. ("CCS") and Crown Cork & Seal Finance S.A.
("CCFS")(the "Debt Securities"), to be issued in accordance with the provisions
of an Indenture (the "Indenture") to be entered into between Crown UK, CCS and
CCFS and the Bank of New York as trustee, substantially in the form attached as
an exhibit to the Registration Statement.
This opinion is limited to English law as presently applied by the
English courts and is given on the basis that it will be governed by and
construed in accordance with English law. We have made no investigation of the
laws of any jurisdiction other than England and neither express nor imply any
opinion as to any other laws and in particular the laws of the State of New York
and the United States of America.
For the purposes of this opinion, we have examined the documents listed
in a schedule attached to this letter (the "Schedule") and we have assumed that
the Indenture will be executed in the form of the document we have examined. In
such examination, we have assumed the genuiness of all signatures, that the form
of the Debt Securities will conform to the form set forth in the Indenture, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
Subject as mentioned herein, we are of the opinion that:-
(a) Crown UK is a company duly incorporated and validly existing under the
laws of England; and
- --------------------------------------------------------------------------------
[LOGO OF TITMUSS SAINER DECHERT APPEARS HERE]
- --------------------------------------------------------------------------------
<PAGE>
(b) When (i) the Indenture has been duly executed by the parties thereto;
(ii) the terms of the Debt Securities and their issuance and sale have been
duly established in conformity with the Indenture so as not to violate any
applicable law of any jurisdiction other than England and Wales; and
(iii) the Debt Securities have been duly authorised by Crown UK and duly
issued in accordance with the Indenture and duly delivered to and paid for
by the purchasers thereof, the Debt Securities will, insofar as English law
is concerned, constitute valid and binding obligations of Crown UK, except
as enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent or
undervalued transfers), reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally, and except as
enforcement thereof is subject to general principles of equity, principles
of English public policy and English rules relating to enforcement or
recognition of foreign judgements.
As regards the opinion expressed in sub-paragraph (a) above, we have relied
upon a search made today at the Companies Registry which revealed no order or
resolution for the winding-up, or order for the administration of Crown UK.
However, it should be noted that such a search is not capable of revealing
whether or not a petition for a winding-up order or for an administration order
has been presented in a County Court or District Registry or in the High Court
of Justice. Notice of a winding-up order or administration order made or a
resolution passed or a receiver or administrator appointed may not be filed at
the Companies Registry immediately.
In connection with the opinion expressed in sub-paragraph (b) above, we draw
your attention to the facts that (i) if an original action is brought in
England, predicated solely upon the United States Federal Securities laws,
English courts may not have the requisite jurisdiction to adjudicate such action
or grant the remedies sought; and (ii) the Debt Securities may not constitute
valid and binding obligations of Crown UK to the extent that they are offered
for sale or sold to the public or any section of the public in the United
Kingdom.
This opinion is addressed to you on the understanding that it may not be
transmitted to any person for any purpose, or quoted or referred to in any
public document or filed with any government agency or other person, without our
prior written consent. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name under the
headings "The Subsidiary Issuers - Enforceability of Certain Civil Liabilities"
and "Legal Matters" in the Registration Statement. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Yours faithfully,
Titmuss Sainer Dechert
<PAGE>
SCHEDULE
1. Memorandum and Articles of Association of Crown Cork & Seal Finance PLC
("Crown UK").
2. A copy of the Minutes of a Meeting of the Directors of Crown UK held on 26
November 1996.
3. A copy of the certificate issued by the Registrar of Companies for England
and Wales and dated 26 November 1996 as to Crown UK's ability to commence
business and borrow.
4. A copy of the Registration Statement.
5. Draft form of Indenture dated 25 November 1996 filed as Exhibit 41 to the
Registration Statement.
<PAGE>
[LETTERHEAD OF JEANTET & ASSOCIES APPEARS HERE]
DECEMBER 6, 1996
Crown Cork & Seal Company, Inc.
9300 Ashton Road
Philadelphia, PA 19136
United States of America
Re.: Crown Cork & Seal Company, Inc.
Crown Cork & Seal Finance S.A.
Debt Securities - USD 1,500,000,000
Dear Sirs,
We have acted as French counsel for Crown Cork & Seal Company, Inc. (the
"Company"), in connection with the Registration Statement on Form S-3 (as
amended, the "Registration Statement"; terms defined in the Registration
Statement being used herein as therein defined), including a prospectus (the
"Prospectus") on November 26, 1996 with the United States Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), and as amended on December 5, 1996, relating to the
proposed issuance of $1,500,000,000 aggregate principal amount of debt
securities (respectively the "Issuance" and the "Debt Securities") by the
Company, Crown Cork & Seal Finance PLC and Crown Cork & Seal Finance S.A., a
French societe anonyme all of the shares of which were acquired on November 22,
1996 by Crown Development SNC, a French subsidiary of the Company, to be made
in accordance with the provisions of an indenture (the "Indenture") among the
Company, Crown Cork & Seal Finance PLC and Crown Cork & Seal Finance S.A. and
the Bank of New York, as Trustee, Notwithstanding anything to the contrary in
any documents whatsoever and for the sole purpose of this opinion, Crown Cork &
Seal Finance S.A. will be referred to herein as the "Issuer".
<PAGE>
Jeantet & Associes
For the purpose of our opinion, we have examined the articles of incorporation
(statuts) of the Issuer, extracts (forms "K-Bis") of the Paris Registre du
Commerce et des Societes relating to the Issuer attesting that the latter has
existed since 1990, a certified copy of the resolutions of the Issuer's
shareholders' meeting dated November 25, 1996 authorizing the Issuance and the
Issuer's board to enter into the Indenture, a certified copy of the resolutions
of the Issuer's board meeting dated November 25, 1996 deciding on the Issuance,
the Registration Statement on Form S-3, including a Prospectus and a form of
Indenture (together the "Debt Securities Documentation").
In considering the above documents, we have assumed (i) the genuineness of all
signatures thereon or on the originals thereof, (ii) the authenticity and
completeness of all documents submitted to us as originals, (iii) the conformity
to original documents and the completeness of all documents submitted to us by
facsimile, as certified copies or as photocopies and the authenticity of the
originals where faxed copies, certified copies or photocopies have been
submitted, (iv) the due authorization and execution of the Indenture by the
parties thereto other than the Issuer, (v) that the form of the Debt Securities
will conform to the form of Debt Securities set forth in the Indenture, (vi)
that the Indenture will constitute the legal, valid and binding obligation of
the parties thereto other than the Issuer, enforceable in accordance with its
respective terms, (vii) that the Debt Securities Documentation, as signed by the
parties thereto, conforms to the forms thereof as submitted to us, and (viii)
that all documents, including all certificates, dated prior to the date hereof,
are true, accurate and complete as to all their particulars on and as of the
date hereof, are valid and effective thereunder and examined.
In addition, with your permission, we have made no independent investigation of
factual matters expressed herein, which factual matters have been determined
solely upon the basis of the documents described in the second paragraph hereof.
We are rendering this opinion solely on the foregoing basis and upon matters of
French law and regulations.
Based upon and subject to the foregoing and to any matters not disclosed to us,
and subject to the qualifications expressed at the end of this letter, we are of
the opinion that (i) the execution and delivery of the Indenture and the
Issuance have been duly authorized by the Issuer and (ii) when the Indenture
relating to the Debt Securities has been duly executed and delivered by the
Issuer, the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture so as not to violate any
applicable law or result in a default under or breach of any agreement of
instrument binding upon the Issuer and so as to comply with any requirement or
restriction imposed by any Court or governmental body having jurisdiction over
the Issuer, and the Debt Securities have been duly executed and delivered by the
Issuer, and when authenticated by the Trustee in the manner provided for in the
Indenture and sold and paid for each Debt Security will constitute a valid and
binding obligation of the Issuer entitled to the benefits of the Indenture and
will be enforceable against the Issuer in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
Page 2
<PAGE>
Jeantet & Associes
We express no opinion on any laws other than French law and, in particular, we
express no opinion on US law.
This opinion is subject to the fact that in actions brought in French courts,
certain questions of procedural law and, in certain events, questions of public
policy (ordre public), would be governed by French law. In particular and
without prejudice to the generality of the foregoing, the enforceability of the
Debt Securities is subject to the following qualifications:
(i) If an original action is brought in France, predicated solely upon the
United States Federal securities laws, French courts may not have the requisite
jurisdiction to adjudicate such action or to grant the remedies sought and that
actions for enforcement in France or judgments of United States courts rendered
against French persons would require such French persons to waive their right
under Article 15 of the French Civil Code to be sued in France only. In
addition, actions in the United States under the U.S. Federal securities laws
could be affected under certain circumstances by the French law of July 16,
1980, which may preclude or restrict the obtaining of evidence in France or from
French persons in connection with such actions and a French court may stay
proceedings if concurrent proceedings are being brought elsewhere.
(ii) Under Article 1152 of the French Civil Code, French Courts have
discretion to increase or decrease the amount of any damages, indemnities or
penalties provided for in the Debt Securities Documentation to the extent they
would deem them manifestly excessive or derisory and pursuant to Articles 1244-1
to 1244-3 of the French Civil code, a French judge has the power to re-schedule
the term for repayment of a debt owed by a French debtor by a period of up to
two years, based upon the situation of the debtor and the needs of the creditor.
(iii) Nothing in this opinion must to be taken as indicating that any
obligation, other than for the payment of a sum of money, would be specifically
enforceable.
(iv) A French court might not enforce the provisions of the Debt Securities
Documentation requiring the Issuer to indemnify third parties for courts cost
and legal fees.
(v) Claims made against the Issuer may become barred under French statutes of
limitations or may be or become subject to defenses of set-off or counter-claim.
(vi) Any judgment obtained against the Issuer in the courts in France in
respect of any sum payable by it under the Debt Securities Documentation may be
expressed in French Francs.
We express no opinion as to the legal and binding effect or enforceability of
provisions of the Debt Securities Documentation pursuant to which the
obligations of the Issuer may be increased without their respective
contemporaneous agreement as well as to any provision of the Debt Securities
Documentation which could be construed as providing for the calculation of
interest on any basis other than the actual number of elapsed days.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the references made to us in the
Registration Statement and the
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<PAGE>
Jeantet & Associes
Prospectus under the captions "The Subsidiary Issuers" and "Legal Matters". In
giving such consent, we do not thereby admit that we are in the category or
persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Jeantet & Associes
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