SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
CROWN CORK & SEAL COMPANY, INC.
- -------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $5.00 per share
4.5% Convertible Preferred Stock, par value $41.8875 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
Common Stock: 228 255
4.5% Convertible Preferred Stock: 228 255 303
---------------------------------------------------------
(CUSIP Number)
Michel Renault Copy to: Allan M. Chapin
General Counsel Sullivan & Cromwell
Compagnie Generale d'Industrie 125 Broad Street
et de Participations New York, N.Y. 10004
89 rue Taitbout (212) 558-4000
75009 Paris, France
(011) 331-4285-3000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 24, 1996
----------------------------------------
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Page 1 of 10 Pages)
<PAGE>
- --------------------------------------------
CUSIP NO. 228 255 (Crown Common Stock)
228 255 303 (Crown Preferred Stock)
- --------------------------------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Compagnie Generale d'Industrie et de Participations
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION France
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0 shares of Crown Common Stock
NUMBER OF 0 shares of Crown Preferred Stock
SHARES ----------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 27,809,536 shares of Crown Common
OWNED BY Stock
EACH 7,110,300 shares of Crown Preferred
REPORTING Stock
PERSON ----------------------------------------------------------------
WITH 9. SOLE DISPOSITIVE 0 shares of Crown Common Stock
POWER 0 shares of Crown Preferred Stock
----------------------------------------------------------------
10. SHARED DISPOSITIVE 27,809,536 shares of Crown Common
POWER Stock
7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 27,809,536 shares of Crown Common
Stock
7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.95% of Crown Common Stock
57.19% of Crown Preferred Stock
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO; HC
- -------------------------------------------------------------------------------
(Page 2 of 10 Pages)
<PAGE>
- -----------------------------------------------
CUSIP NO. 228 255 (Crown Common Stock)
228 255 303 (Crown Preferred Stock)
- -----------------------------------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Marine-Wendel
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION France
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0 shares of Crown Common Stock
NUMBER OF 0 shares of Crown Preferred Stock
SHARES ----------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 27,809,536 shares of Crown Common Stock
OWNED BY 7,110,300 shares of Crown Preferred
EACH Stock
REPORTING ----------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE 0 shares of Crown Common Stock
WITH POWER 0 shares of Crown Preferred Stock
----------------------------------------------------------------
10. SHARED DISPOSITIVE 27,809,536 shares of Crown Common Stock
POWER 7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 27,809,536 shares of Crown Common Stock
7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.95% of Crown Common Stock
57.19% of Crown Preferred Stock
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO; HC
- -------------------------------------------------------------------------------
(Page 3 of 10 Pages)
<PAGE>
- -----------------------------------------------
CUSIP NO. 228 255 (Crown Common Stock)
228 255 303 (Crown Preferred Stock)
- -----------------------------------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wendel-Participations
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION France
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0 shares of Crown Common Stock
NUMBER OF 0 shares of Crown Preferred Stock
SHARES ----------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 27,809,536 shares of Crown Common Stock
OWNED BY 7,110,300 shares of Crown Preferred
EACH Stock
REPORTING ----------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE 0 shares of Crown Common Stock
WITH POWER 0 shares of Crown Preferred Stock
----------------------------------------------------------------
10. SHARED DISPOSITIVE 27,809,536 shares of Crown Common Stock
POWER 7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 27,809,536 shares of Crown Common Stock
7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.95% of Crown Common Stock
57.19% of Crown Preferred Stock
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO; HC
- -------------------------------------------------------------------------------
(Page 4 of 10 Pages)
<PAGE>
- -----------------------------------------------
CUSIP NO. 228 255 (Crown Common Stock)
228 255 303 (Crown Preferred Stock)
- -----------------------------------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Societe de Gerance de Valeurs Mobilieres
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
[ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION France
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0 shares of Crown Common Stock
NUMBER OF 0 shares of Crown Preferred Stock
SHARES ----------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 27,809,536 shares of Crown Common Stock
OWNED BY 7,110,300 shares of Crown Preferred
EACH Stock
REPORTING ----------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE 0 shares of Crown Common Stock
WITH POWER 0 shares of Crown Preferred Stock
----------------------------------------------------------------
10. SHARED DISPOSITIVE 27,809,536 shares of Crown Common Stock
POWER 7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 27,809,536 shares of Crown Common Stock
7,110,300 shares of Crown Preferred
Stock
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.95% of Crown Common Stock
57.19% of Crown Preferred Stock
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO; HC
- -------------------------------------------------------------------------------
(Page 5 of 10 Pages)
<PAGE>
This Amendment No. 2, dated October 24, 1996, amends the
Schedule 13D, dated February 15, 1996, as amended and supplemented by Amendment
No. 1 thereto, dated September 26, 1996 (collectively, the "Schedule 13D"),
filed on behalf of Compagnie Generale d'Industrie et de Participations ("CGIP"),
Marine-Wendel ("Marine-Wendel"), Wendel-Participations ("Wendel-
Participations") and Societe de Gerance de Valeurs Mobilieres ("SGVM")
(collectively, the "Reporting Persons"), by adding the following additional
information:
Item 4. Purpose of Transaction.
The following is hereby added after the last paragraph of Item
4:
On October 24, 1996, CGIP and Sofiservice entered
into the following underwriting agreements: (i) a U.S. Underwriting
Agreement, dated October 24, 1996 (the "U.S. Underwriting Agreement"),
among Crown, CGIP, Sofiservice, and Lazard Freres & Co. LLC, CS First
Boston Corporation and Salomon Brothers Inc, as representatives of the
several U.S. underwriters named in Schedule I thereto (the "U.S.
Underwriters"), providing for the sale of up to 8,787,500 shares of
Crown Common Stock (the "U.S. Underwritten Common Stock") by CGIP and
Sofiservice, (ii) an International Underwriting Agreement, dated
October 24, 1996 (the "International Underwriting Agreement"), among
Crown, CGIP, Sofiservice and Lazard Capital Markets, CS First Boston
Limited and Salomon Brothers International Limited, as representatives
of the several international underwriters named in Schedule I thereto
(the "International Underwriters"), providing for the sale of up to
1,850,000 shares of Crown Common Stock (the "International Underwritten
Common Stock" and, together with the U.S. Underwritten Common Stock,
the "Underwritten Common Stock") by CGIP and Sofiservice, and (iii) an
Underwriting Agreement, dated October 24, 1996 (together with the U.S.
Underwriting Agreement and the International Underwriting Agreement,
the "Underwriting Agreements"), among Crown, CGIP, Sofiservice and
Lazard Freres & Co. LLC, CS First Boston Corporation and Salomon
Brothers Inc (together with the U.S. and International Underwriters,
the "Underwriters"), providing for the sale of up to 3,450,000 shares
of Crown Preferred Stock (the "Underwritten Preferred Stock" and,
together with the Underwritten Common Stock, the "Underwritten Stock")
by CGIP and Sofiservice. Copies of the Underwriting Agreements are
filed as exhibits to this Amendment.
(Page 6 of 10 Pages)
<PAGE>
Subject to the terms and conditions of the
Underwriting Agreements, CGIP and Sofiservice have agreed to sell to
the Underwriters, and the Underwriters have agreed to purchase from
CGIP and Sofiservice, 9,250,000 shares of the Underwritten Common Stock
at a purchase price of $44.64 per share and 3,000,000 shares of the
Underwritten Preferred Stock at a purchase price of $43.033 per share.
In addition, CGIP has granted the Underwriters an option for 30 days to
purchase up to an additional 1,387,500 shares of the Underwritten
Common Stock and up to an additional 450,000 shares of the Underwritten
Preferred Stock on the same terms and conditions, solely to cover
over-allotments. The Underwriters have agreed to offer the Underwritten
Common Stock for sale to the public at a purchase price of $46.25 per
share and the Underwritten Preferred Stock for sale to the public at a
purchase price of $44.25 per share. Based on Crown Common Shares of
128,245,064 and Crown Preferred Shares of 12,432,622 outstanding on
October 23, 1996, and assuming full exercise of the underwriters'
over-allotment options, CGIP will have 10.05% of the Total Voting
Power of Crown, as such term is defined in the Shareholders Agreement,
following the offerings.
In addition, CGIP, Sofiservice and the Underwriters
have agreed pursuant to a letter agreement, dated October 24, 1996 (the
"Letter Agreement"), that to the extent that the indemnification and
contribution provisions under the Underwriting Agreements are
insufficient or unavailable to the respective Underwriters thereunder
with respect to certain losses of such Underwriters, CGIP and
Sofiservice shall contribute to such Underwriters in respect of such
losses in such proportion as is appropriate to reflect the relative
benefits received by CGIP and Sofiservice on the one hand and such
Underwriters on the other from the offering of the Underwritten Stock
or, if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect both such relative benefits as
well as the relative fault (as determined pursuant to the respective
Underwriting Agreements) of such Underwriters, on the one hand, and
CGIP and Sofiservice, on the other, in connection with the statements
or omissions which resulted in such losses as well as other relevant
equitable considerations. A copy of the Letter Agreement is filed as
an exhibit to this Amendment.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of Issuer.
As more fully described in Item 4 above, CGIP and Sofiservice
have entered into the Underwriting Agreements and the Letter Agreement. Copies
of the Underwriting Agreements and the Letter Agreement are attached hereto as
Exhibits A, B, C and D.
(Page 7 of 10 Pages)
<PAGE>
Item 7. Material to be Filed as Exhibits.
Description Exhibit
----------- -------
U.S. Underwriting Agreement, dated October 24, A
1996, among Crown Cork & Seal Company, Inc.,
Compagnie Generale d'Industrie et de
Participations, Sofiservice, and Lazard Freres
& Co. LLC, CS First Boston Corporation and
Salomon Brothers Inc, as representatives of the
several U.S. underwriters to be named in
Schedule I thereto.
International Underwriting Agreement, dated B
October 24, 1996, among Crown Cork & Seal
Company, Inc., Compagnie Generale d'Industrie
et de Participations, Sofiservice and Lazard
Capital Markets, CS First Boston Limited and
Salomon Brothers International Limited, as
representatives of the several international
underwriters to be named in Schedule I thereto.
Underwriting Agreement, dated October 24, 1996, C
among Crown Cork & Seal Company, Inc.,
Compagnie Generale d'Industrie et de Participations,
Sofiservice and Lazard Freres & Co. LLC, CS
First Boston Corporation and Salomon Brothers
Inc.
Letter Agreement, dated October 24, 1996, among D
Compagnie Generale d'Industrie et de
Participations, Sofiservice and Lazard Freres &
Co. LLC, CS First Boston Corporation and
Salomon Brothers Inc and Lazard Capital Markets, CS
First Boston Limited and Salomon Brothers
International Limited.
(Page 8 of 10 Pages)
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: October 28, 1996
Compagnie Generale
d'Industrie et de Participations
By: /s/ Ernest-Antoine Seilliere
--------------------------------
Name: Ernest-Antoine SEILLIERE
Title: Chairman and CEO
Marine-Wendel
By: /s/ Ernest-Antoine Seilliere
--------------------------------
Name: Ernest-Antoine SEILLIERE
Title: Chairman and CEO
Wendel-Participations
By: /s/ Louis-Amedee de Moustier
--------------------------------
Name: Louis-Amedee de MOUSTIER
Title: Managing Director
Societe de Gerance
de Valeurs Mobilieres
By: /s/ Louis-Amedee de Moustier
--------------------------------
Name: Louis-Amedee de MOUSTIER
Title: Chairman and CEO
(Page 9 of 10 Pages)
<PAGE>
Exhibit Index
-------------
1.A - U.S. Underwriting Agreement, dated October 24, 1996, among Crown Cork
& Seal Company, Inc., Compagnie Generale d'Industrie et de
Participations, Sofiservice, and Lazard Freres & Co. LLC, CS First
Boston Corporation and Salomon Brothers Inc, as representatives of the
several U.S. underwriters to be named in Schedule I thereto.
1.B - International Underwriting Agreement, dated October 24, 1996, among
Crown Cork & Seal Company, Inc., Compagnie Generale d'Industrie et de
Participations, Sofiservice and Lazard Capital Markets, CS First
Boston Limited and Salomon Brothers International Limited, as
representatives of the several international underwriters to be named
in Schedule I thereto.
1.C - Underwriting Agreement, dated October 24, 1996, among Crown Cork &
Seal Company, Inc., Compagnie Generale d'Industrie et de
Participations, Sofiservice and Lazard Freres & Co. LLC, CS First
Boston Corporation and Salomon Brothers Inc.
99.D - Letter Agreement, dated October 24, 1996, among Compagnie Generale
d'Industrie et de Participations, Sofiservice and Lazard Freres & Co.
LLC, CS First Boston Corporation and Salomon Brothers Inc and Lazard
Capital Markets, CS First Boston Limited and Salomon Brothers
International Limited.
(Page 10 of 10 Pages)
Exhibit A
7,400,000 Shares
Crown Cork & Seal Company, Inc.
COMMON STOCK
($5.00 PAR VALUE)
U.S. UNDERWRITING AGREEMENT
October 24, 1996
Lazard Freres & Co. LLC
CS First Boston Corporation
Salomon Brothers Inc
c/o Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Dear Sirs:
SECTION 1. Introductory. Compagnie Generale d'Industrie et de
Participations, a societe anonyme organized under the laws of the Republic of
France ("CGIP"), and Sofiservice, a societe anonyme organized under the laws of
the Republic of France and a wholly owned subsidiary of CGIP ("Sofiservice" and,
together with CGIP, the "Selling Stockholders"), propose to sell to the several
Underwriters named in Schedule I hereto (the "U.S. Underwriters"), for whom
Lazard Freres & Co. LLC, CS First Boston Corporation and Salomon Brothers Inc
are acting as representatives (the "U.S. Representatives"), an aggregate of
7,400,000 shares (the "U.S. Firm Shares") of Common Stock, par value $5.00 per
share (the "Common Stock"), of Crown Cork & Seal Company, Inc. (the "Company"),
each Selling Stockholder selling the amount set forth opposite such Selling
Stockholder's name in Schedule II hereto. CGIP also proposes to sell to the U.S.
Underwriters, upon the terms and conditions set forth in Section 4 hereof, up to
an additional 1,387,500 shares of Common Stock (the "Additional Shares"). The
U.S. Firm Shares and the Additional Shares are hereinafter sometimes
collectively referred to as the "U.S. Shares".
It is understood that the Company and the Selling Stockholders
are concurrently entering into an international underwriting agreement dated the
date hereof (the "International Underwriting Agreement") in which the Selling
Stockholders propose to sell to
<PAGE>
the several Underwriters named therein (the "International Underwriters")
for whom Lazard Capital Markets, CS First Boston Limited and Salomon Brothers
International Limited are acting as representatives (the "International
Representatives") an aggregate of 1,850,000 shares (the "International Shares")
of the Company's Common Stock. The respective closings under this Agreement and
the International Underwriting Agreement are hereby expressly made conditional
on one another.
The U.S. Shares and the International Shares are herein
collectively referred to as the "Shares". The U.S. Underwriters and the
International Underwriters are herein collectively referred to as the
"Underwriters".
It is further understood that the U.S. Representatives on
behalf of the U.S. Underwriters and the International Representatives on behalf
of the International Underwriters have entered into an agreement of even date
herewith (the "Agreement Among U.S. and International Underwriters"),
contemplating the coordination of certain transactions among the U.S. and
International Underwriters and that, pursuant thereto and subject to the
conditions set forth therein, the U.S. Underwriters may purchase from or sell to
the International Underwriters a portion of the U.S. Shares and the
International Underwriters may purchase from or sell to the U.S. Underwriters a
portion of the International Shares. Any such purchases or sales shall be
governed by the Agreement Among U.S. and International Underwriters and not by
the terms of this Agreement.
It is further understood that the Company and the Selling
Stockholders are concurrently entering into an underwriting agreement dated the
date hereof (the "Preferred Underwriting Agreement") in which the Selling
Stockholders propose to sell to the several Underwriters named therein (the
"Preferred Underwriters") an aggregate of 3,000,000 shares (the "Preferred Firm
Shares") of the Company's 4.5% Convertible Preferred Stock, par value $41.8875
per share (the "Preferred Stock"). In addition, CGIP has agreed to sell to the
Preferred Underwriters, upon the terms and conditions set forth in the Preferred
Underwriting Agreement, up to an additional 450,000 shares of Preferred Stock
(the "Preferred Additional Shares" and, collectively with the Preferred Firm
Shares, the "Preferred Shares"). The respective closings under this Agreement
and the International Underwriting Agreement, on the one hand, and the Preferred
Underwriting Agreement, on the other hand, are not conditional on one another.
The Company and the Selling Stockholders hereby agree with the
U.S. Underwriters as follows (it being understood and agreed that the
obligations set forth herein are several in nature, unless expressly stated to
the contrary):
<PAGE>
SECTION 2. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to, and agrees with, (i) the
several U.S. Underwriters and (ii) in the case of clauses (a), (b), (c), (j) and
(n) and the second sentence of clause (g) below only, the Selling Stockholders
(it being understood and agreed that such representations and warranties to the
Selling Stockholders are being made solely in connection with the sale of the
Shares under this Agreement and the International Underwriting Agreement and
subject to the last sentence of Section 9(a)), that:
(a) The Company meets the registrant requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on Form S-3 (File No. 333-12787), including
forms of prospectuses relating to the Shares, has been filed by the
Company pursuant to the Act with the Securities and Exchange Commission
(the "Commission"). The Company may have filed one or more amendments
thereto, including the related Preliminary Prospectuses (as defined
below), each of which (other than documents incorporated by reference
therein) has previously been furnished to you. The Company will file
with the Commission either (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement (including the forms of final prospectuses relating to the
Shares) or (ii) after effectiveness of such registration statement,
final prospectuses relating to the Shares in accordance with Rules 430A
and 424(b)(1) or (4) under the Act. In the case of clause (ii), the
Company has included or shall include in such registration statement,
as amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from such registration
statement when it becomes effective pursuant to Rule 430A ("Rule 430A
Information")) required by the Act and the rules and regulations
thereunder (the "Rules and Regulations") to be included in the final
prospectuses with respect to the Shares and the offering thereof. As
filed, such amendment and forms of final prospectuses, or such final
prospectuses, shall contain all Rule 430A Information, together with
all other such required information, with respect to the Shares and the
offering thereof, and, except to the extent you shall agree in writing
to a modification (which shall not be unreasonably withheld or
delayed), shall be in all substantive respects in the form furnished to
you prior to the execution of this Agreement or, to the extent not in
such form, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectuses) as the Company has advised the U.S. Representatives,
prior to the execution of this Agreement, will be included or made
therein. For purposes of this Agreement, "Effective Time" means the
time as of which such registration statement or the most recent
post-effective amendment thereto, if any, was or is declared effective
by the Commission and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is
filed. "Effective Date" means the date of the Effective Time. The
registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S.
prospectus relating to the U.S. Shares and the international prospectus
relating to the International Shares. The international prospectus is
identical to the U.S. prospectus, except the international prospectus
<PAGE>
contains different front and back cover pages and different
descriptions of the plan of distribution (contained under the caption
"Underwriting" in each of the U.S. and international prospectus). Such
registration statement, as amended at the Effective Time, including
incorporated documents, exhibits and financial statements, and
including all Rule 430A Information, if any, and, any post-effective
amendment thereto that becomes effective prior to the Closing Date (as
defined below) is hereinafter referred to as the "Registration
Statement", and the U.S. prospectus relating to the U.S. Shares and the
international prospectus relating to the International Shares in the
forms first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or, if no such filing is
required, as included in the Registration Statement, are hereinafter
referred to as the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively as the "Prospectuses". Any
preliminary prospectus relating to the U.S. Shares or the International
Shares included in such Registration Statement or filed pursuant to
Rule 424(a) under the Act is hereinafter referred to as a "U.S.
Preliminary Prospectus" or an "International Preliminary Prospectus",
respectively, and collectively as "Preliminary Prospectuses". Any
reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectuses shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934
(the "Exchange Act") on or before the Effective Time of the
Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectuses, as the case may be, and references to information
being "included", "contained" or "set forth in" any such document (or
similar expressions) shall be similarly construed; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectuses shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Time of the
Registration Statement, or the issue date of any Preliminary Prospectus
or the Prospectuses, as the case may be, deemed to be incorporated
therein by reference.
(b) At the Effective Time, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 4), the Prospectuses (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act
and the Rules and Regulations; at the Effective Time, the Registration
Statement did not or will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, at the Effective Time, the Prospectuses, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectuses (and any supplements thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply
<PAGE>
to information contained in or omitted from the Registration Statement
or the Prospectuses (or any supplement thereto) in reliance upon and in
conformity with the Underwriters' Information or the Selling
Stockholders' Information (as defined in Section 9(a)).
(c) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose shall have been instituted or threatened
by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements
of the Act and the Rules and Regulations, and did not contain any
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; except that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with the
Underwriters' Information or the Selling Stockholders' Information.
(d) The historical consolidated financial statements included
in the Registration Statement and the Prospectuses (and any amendment
or supplement thereto) present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations, the statements of their cash flows and the changes in their
financial position for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved
(except as described in the notes to such financial statements); and
the supporting schedules, if any, included in the Registration
Statement present fairly in all material respects the information
required to be stated therein. The pro forma financial statements
included in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto) have been prepared on a basis
consistent with such historical financial statements (except as
described in such pro forma financial statements), include all material
adjustments to the historical financial data required to reflect the
transactions to which pro forma effect is given, give effect to
assumptions made on a reasonable basis, and present fairly in all
material respects on a pro forma basis the estimated consolidated
financial position and results of operations of the Company and its
consolidated subsidiaries assuming that such transactions had occurred
on the date specified therein.
(e) There has not been sustained since the date of the latest
audited financial statements included in the Prospectuses any material
adverse change in the financial condition, results of operations or
business of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"), except as set forth in the Prospectuses.
(f) The Company and each of its subsidiaries have been duly
incorporated and are validly existing in good standing under the laws
of their respective
<PAGE>
jurisdictions of organization with power and authority to own, lease
and operate their properties and conduct their businesses as described
in the Registration Statement and the Prospectuses; and each of them is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which it owns or leases
properties or in which the conduct of its business requires such
qualification, except to the extent that any such failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
(g) The Company has an authorized capitalization as set forth
in the Prospectuses, and all shares of capital stock of the Company
outstanding, including the Shares, have been duly authorized, are
validly issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectuses. The sale of the Shares is not subject to pre-emptive or
other similar rights or restrictions on transfer created by the Company
under the Company's articles of incorporation or bylaws, under
applicable law or under any agreement to which the Company is a party
or of which the Company has actual knowledge (other than those imposed
by the Act, the Rules and Regulations, foreign securities laws or state
securities or Blue Sky laws and other than restrictions on transfers
contained in that certain Shareholders Agreement, dated February 22,
1996, between the Company and CGIP (the "Shareholders Agreement") which
have been fully waived or satisfied); and the Shares are duly listed
and admitted for trading on the New York Stock Exchange (the "NYSE").
(h) All of the issued and outstanding capital stock of each
material subsidiary of the Company listed on Schedule III hereto has
been duly authorized and validly issued and is fully paid and
non-assessable, and, except as set forth in the Prospectuses, all the
issued and outstanding capital stock of each such material subsidiary
is owned, directly or through subsidiaries, by the Company, free and
clear of any pledge, lien, encumbrance, adverse claim or equity
(collectively, a "Lien"), except for any such Liens that would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) Neither the Company nor any of its subsidiaries is in
violation of its or any of their charters or by-laws or other
organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which it or any of them or their properties may be bound,
except any violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration,
filing or qualification by or on behalf of the Company or any of its
subsidiaries of or with any court or governmental authority or agency
or of the NYSE is required for the sale of
<PAGE>
the Shares or the consummation of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except such as
may be required under the Act, the Rules and Regulations or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; and the execution and
delivery of this Agreement and the International Underwriting
Agreement, and the consummation of the transactions contemplated herein
and therein will not (i) conflict with or constitute a breach of any of
the terms or provisions of, or default under, or result in the creation
or imposition of any Lien upon any property or assets of the Company or
any of its subsidiaries pursuant to, any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
that is material to the Company and its subsidiaries taken as a whole,
(ii) result in any violation or breach of the provisions of the charter
or by-laws or other organizational documents of the Company or any of
its subsidiaries or (iii) result in any violation of any law,
administrative regulation or administrative or court decree or order
applicable to the Company, any of its material subsidiaries or their
respective property.
(k) The Company and its subsidiaries are in compliance with
all laws and regulations applicable to them and their respective
properties and possess all certificates, authorities or permits issued
by, and have made all filings with, the appropriate state, local,
Federal or foreign regulatory agencies or bodies necessary or desirable
to conduct the business now operated by them, except where
noncompliance with such laws or regulations or the failure to possess
or make the same would not, individually or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation, termination or modification of any such certificate,
authority, permit or filing, other than any such revocation,
termination or modification that would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Except as described in the Prospectuses, there are no
actions, suits or proceedings before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, contemplated or threatened against the Company or any
of its subsidiaries, or to which any of their respective properties is
subject, which, (i) if adversely determined, would, individually or in
the aggregate, result in any Material Adverse Effect or (ii) questions
the validity of this Agreement or any action taken or required to be
taken pursuant hereto.
(m) Each of the Company and its subsidiaries has good and
marketable title to all real and personal property owned by it, in each
case free and clear of any Lien, except (i) such as are referred to in
the Prospectuses or (ii) such as would not, individually or in the
aggregate, have a Material Adverse Effect; and any real
<PAGE>
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect.
(n) This Agreement has been duly authorized,
executed and delivered by the Company.
(o) Other than the Shareholders Agreement, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities under the Registration Statement.
(p) Except as set forth in the Prospectuses under the
caption "Underwriting", neither the Company nor, to the Company's
knowledge, any of its officers or directors or any of their respective
affiliates is a member of, or is associated or affiliated with a
member of, the National Association of Securities Dealers, Inc.
"NASD").
SECTION 3. Representations, Warranties and Agreements of the
Selling Stockholders. Each Selling Stockholder, jointly and severally,
represents and warrants to, and agrees with, (i) the several U.S. Underwriters
and (ii) the Company (it being understood and agreed that such representations
and warranties to the Company are being made solely in connection with the sale
of the Shares under this Agreement and the International Underwriting Agreement
and subject to the last sentence of Section 9(b)), that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) Such Selling Stockholder has the legal right and power to
execute and deliver this Agreement and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder in the manner
provided in this Agreement and the International Underwriting
Agreement, and no such action will result in any violation or breach of
the provisions of the charter or by-laws or other organizational
documents of such Selling Stockholder or any agreement or other
instrument binding upon such Selling Stockholder (including the
restrictions on transfer contained in the Shareholders Agreement, which
have been fully waived or satisfied) or any law, administrative
regulation or administrative or court decree or order applicable to
such Selling Stockholder; and no consent, approval, authorization,
order, registration, filing or qualification of or with any court or
governmental authority or agency or of the NYSE is required for the
consummation of the transactions contemplated by this Agreement and the
International Underwriting Agreement in connection with the sale of the
Shares by such Selling Stockholder, except such as may be required
under the
<PAGE>
Act, the Rules and Regulations or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(c) Such Selling Stockholder has, and will deliver to the
Underwriters upon payment therefor good and marketable title to the
Shares to be sold by such Selling Stockholder, free and clear of any
Lien.
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(e) At the Effective Time, the Selling Stockholders'
Information contained in the Registration Statement did not or will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements in the Selling Stockholders' Information not
misleading; and, at the Effective Time, the Selling Stockholders'
Information contained in the Prospectuses, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Selling
Stockholders' Information contained in the Prospectuses (and any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements in the Selling Stockholders' Information, in the
light of the circumstances under which they were made, not misleading.
(f) There are no contracts, agreements or understandings
between the Selling Stockholders and any person that would give rise to
a valid claim against the Selling Stockholders or any Underwriter for a
brokerage commission, finder's fee or other like payment.
SECTION 4. Purchase, Sale and Delivery of U.S. Shares. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the U.S. Underwriters, and
each U.S. Underwriter agrees, severally and not jointly, to purchase from such
Selling Stockholder, at a purchase price of $44.64 per U.S. Share (the "purchase
price per U.S. Share"), the respective number of U.S. Firm Shares (subject to
adjustment by the U.S. Representatives to eliminate fractions) that bear the
same proportion to the number of U.S. Firm Shares to be sold by such Selling
Stockholder as the number of U.S. Firm Shares set forth opposite the name of
such U.S. Underwriter in Schedule I hereto bears to the total number of U.S.
Firm Shares.
The obligations of the Selling Stockholders hereunder to sell
the U.S. Firm Shares, and the obligations of the U.S. Underwriters to purchase
the U.S. Firm Shares, are
<PAGE>
subject to the closing of the sale and purchase of the International Shares
pursuant to the International Underwriting Agreement.
CGIP hereby agrees to sell to the U.S. Underwriters and, on
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the U.S. Underwriters
shall have the right to purchase, severally and not jointly, from CGIP, pursuant
to an option to be exercised in the 30-day period commencing on the date of this
Agreement, up to 1,387,500 Additional Shares at the purchase price per U.S.
Share. Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the U.S. Firm Shares and
the International Shares. If any Additional Shares are to be purchased, each
U.S. Underwriter agrees, severally and not jointly, to purchase from CGIP that
proportion of the total number of Additional Shares (subject to adjustment by
the U.S. Representatives to eliminate fractions) to be purchased from CGIP as
the number of U.S. Firm Shares set forth opposite the name of such U.S.
Underwriter in Schedule I hereto bears to the total number of U.S. Firm Shares.
Each Selling Stockholder will deliver the U.S. Firm Shares to
be purchased by the U.S. Underwriters to the U.S. Representatives for the
accounts of the U.S. Underwriters, against payment of the purchase price
therefor by wire transfer of same day funds to an account specified in writing
by such Selling Stockholder. Payment for the U.S. Firm Shares shall be made at
the offices of Cravath, Swaine & Moore at 10:00 A.M., New York Time, on October
30, 1996 or at such other place or time not later than seven full business days
thereafter as the U.S. Representatives and the Selling Stockholders determine
(the "Initial Closing Date").
CGIP will deliver the Additional Shares to be purchased by the
U.S. Underwriters to the U.S. Representatives for the accounts of the U.S.
Underwriters, against payment of the purchase price therefor by wire transfer of
same day funds to an account specified in writing by CGIP, at the offices of
Cravath, Swaine & Moore on such date and at such time (the "Option Closing
Date"), as shall be specified in the notice from Lazard Freres & Co. LLC to CGIP
exercising the option to purchase the Additional Shares. The Option Closing Date
may be the same as the Initial Closing Date but shall in no event be earlier
than the Initial Closing Date nor earlier than two nor later than ten business
days after the giving of the notice hereinafter referred to. Such notice may be
given, by letter or by telecopy or other facsimile transmission or by telephone
(if subsequently confirmed in writing), to CGIP at any time within 30 days after
the date of this Agreement. The Option Closing Date may be varied by agreement
between the U.S. Representatives and CGIP. The Initial Closing Date and the
Option Closing Date are herein collectively referred to as the "Closing Date."
The certificates for all the U.S. Firm Shares and the
Additional Shares so to be delivered will be in such denominations and
registered in such names as the U.S. Representatives request two full business
days prior to the Initial Closing Date or the Option Closing Date, as the case
may be, and will be made available at the offices of Lazard Freres & Co. LLC,
New York, New York or, upon your request, through the facilities of The
<PAGE>
Depository Trust Company, for checking and packaging at least one full business
day prior to the Initial Closing Date or the Option Closing Date, as the case
may be.
Each Selling Stockholder will not, without the prior written
consent of the U.S. Representatives, offer, sell, pledge or otherwise dispose
of, any shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock or any rights to
purchase or acquire such capital stock, for a period of one year after the date
of this Agreement; provided, however, that the foregoing restriction shall not
apply to (i) the sale of the Shares to be sold hereunder and under the
International Underwriting Agreement, (ii) the sale of the Preferred Shares to
be sold under the Preferred Underwriting Agreement, (iii) any conversion of
shares of Preferred Stock into shares of Common Stock pursuant to the terms of
the Preferred Stock and (iv) any disposition of any shares of Common Stock or
Preferred Stock pursuant to a bona fide pledge or grant of a security interest
to a major brokerage firm or financial institution to secure bona fide
indebtedness, or the sale of such shares upon foreclosure on such pledge,
provided that each purchaser of such shares upon foreclosure agrees to be bound
by the provisions of this paragraph.
SECTION 5. Offering by U.S. Underwriters. After the
Registration Statement becomes effective, the several U.S. Underwriters will
offer the U.S. Shares for sale to the public on the terms and conditions as set
forth in the U.S. Prospectus.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several U.S. Underwriters and the Selling Stockholders that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Prospectuses with
the Commission pursuant to and in accordance with subparagraph (1) (or,
if applicable, and with the U.S. Representatives' consent, subparagraph
(4)) of Rule 424(b) within the time period prescribed by such rule. The
Company will advise the U.S. Representatives promptly of any proposal
to amend or supplement the Registration Statement as filed, or the
Prospectuses, and will not effect such amendment or supplement or
filing without the U.S. Representatives' consent (which shall not be
unreasonably withheld or delayed). The Company will also advise the
U.S. Representatives promptly after the Company receives notice of the
effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution and delivery of this Agreement), of the
filing and effectiveness of any amendment or supplement to the
Registration Statement or the Prospectuses, and of the issuance by the
Commission of any stop order in respect of the Registration Statement
or of any order preventing or suspending the use of any Preliminary
Prospectus or any prospectus relating to the Shares or the initiation
of proceedings for any such purpose, of suspension of the qualification
of the Shares for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or of any
request by the Commission to amend or supplement the Registration
Statement or the Prospectuses or for additional
<PAGE>
information and will use its best efforts to prevent the issuance of
any such stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or any prospectus relating to the Shares or
suspending any such qualification and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result
of which the Prospectuses as then amended or supplemented would include
an untrue statement of a material fact, or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectuses or the
Registration Statement to comply with the Act, the Rules and
Regulations or any other law, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 6, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will notify the U.S. Representatives and, upon their
request, prepare and furnish without charge to each U.S. Underwriter,
each Selling Stockholder (except as provided below) and to any dealer
in securities as many copies as the U.S. Representatives may from time
to time reasonably request, of amended Prospectuses or any supplement
to the Prospectuses complying with Section 10(a) of the Act which will
correct such statement or omission or effect such compliance, it being
understood and agreed that the Selling Stockholders will pay all costs
and expenses incident to the preparation, printing, filing and
distribution of any such amendment or supplement.
(c) The Company will make generally available to the Company's
security holders as soon as practicable, but in any event not later
than 18 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement that
satisfies the provisions of Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(d) The Company will deliver to each of the U.S.
Representatives as many conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits
filed therewith and documents incorporated therein by reference) and
copies of the Preliminary Prospectuses and the Prospectuses as the U.S.
Representatives may reasonably request and will also deliver to the
U.S. Representatives a conformed copy of the Registration Statement and
each amendment thereto (including exhibits filed therewith and
documents incorporated therein by reference) for each of the U.S.
Underwriters.
(e) The Company will take such action as the U.S.
Representatives may reasonably request, in cooperation with the U.S.
Representatives to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the U.S. Representatives may designate, and will
maintain such qualifications in effect for as long as may be required
for the
<PAGE>
distribution of the Shares; provided, however, that in no event shall
the Company be obligated in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it shall not then be
qualified, or to execute a general consent to service of process in any
jurisdiction in which such a consent has not been previously filed, or
subject itself to taxation in any jurisdiction wherein it would not
otherwise be subject to tax but for the requirements of this paragraph.
The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Shares have been qualified
as above provided.
(f) The Company agrees that neither it nor any of its
directors or the principal executive officers set forth in Item 10 of
the Company's Annual Report on Form 10-K for the year ended December
31, 1995 will, without the prior written consent of the U.S.
Representatives, offer, sell or otherwise dispose of, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock or any rights to
purchase or acquire such capital stock, for a period of 90 days after
the date of this Agreement; provided, however, that the foregoing
restriction shall not apply to any issuances or sales (a) in connection
with stock option, savings, benefit or compensation plans or dividend
reinvestment plans in existence on the date of this Agreement or the
conversion or exchange of convertible or exchangeable securities of the
Company, (b) in connection with a merger or other combination with, or
exchange offer for shares of, or acquisition of assets of, another
entity, (c) required in the Company's judgment to prevent termination
of the Standstill Period (as defined in the Shareholders Agreement), or
(d) by such directors and officers of up to 300,000 shares of capital
stock in the aggregate; provided, further, that (i) in the case of
clauses (b), (c) and (d) above, the Company shall give the U.S.
Underwriters at least 2 business days' prior written notice of such
issuance or sale and (ii) in the case of clauses (b) and (c) above, the
recipients of any such securities shall agree to be bound by the
provisions of this paragraph.
SECTION 7. Conditions of the Obligations of the U.S.
Underwriters. The obligations of the several U.S. Underwriters to purchase and
pay for the U.S. Firm Shares on the Initial Closing Date will be subject (i) to
the provisions of Section 11 herein, (ii) in the case of representations and
warranties qualified as to materiality, to the accuracy of such representations
and warranties in all respects, and in the case of representations and
warranties not so qualified, to the accuracy of such representations and
warranties in all material respects, in each case on the part of the Company and
the Selling Stockholders herein as of the date hereof and as of the Initial
Closing Date with the same force and effect as if made as of that date, (iii) to
the accuracy of the statements of Company officers and Selling Stockholder
officers made in any certificates furnished pursuant to the provisions hereof,
(iv) to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder and (v) to the following additional conditions
precedent:
<PAGE>
(a) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than (i) 6:00 p.m. New York City time on the date of
determination of the offering price, if such determination occurred at
or prior to 3:00 p.m. New York City time on such date or (ii) 12:00
noon New York City time on the business day following the day on which
the offering price was determined if such determination occurred after
3:00 p.m. New York City time on such date. If the Effective Time is
prior to the execution and delivery of this Agreement, the Company
shall have filed the Prospectuses with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 6(a) hereof.
In either case, prior to the Initial Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission; and the Company shall have
complied with all requests for additional information on the part of
the Commission to the U.S. Representatives' reasonable satisfaction.
(b) The Underwriters shall have received an opinion of Dechert
Price & Rhoads, counsel for the Company, dated the Initial Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; and the Company has the
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 Prospectuses.
(ii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby do not (a) conflict with or result in a
violation of any of the provisions of the articles of
incorporation or bylaws of the Company, (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 the Company or by which
any property or asset of the Company or any of its
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
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 any of its
<PAGE>
subsidiaries is a party or by which any of them or any of its
properties or assets is or may be bound.
(iv) 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 any of its properties is required to be
obtained by the Company in connection with the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except filings and
other actions required under the Act and the Rules and
Regulations and state securities and blue sky laws, as to
which such counsel need not express any opinion.
(v) The Company has an authorized capitalization as
set forth in the Prospectuses; the Shares have been duly and
validly authorized and have been duly and validly issued, and
are fully paid and nonassessable; the Shares conform in all
material respects to the description thereof in the
Prospectuses.
(vi) The Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, and, to the knowledge of such counsel, no stop
order has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The statements set forth or referred to in the
Prospectuses under the headings "Description of Capital
Stock--General", "Description of Capital Stock--Common Stock",
"Description of Capital Stock--Preferred Stock" and "Certain
United States Federal Tax Considerations for Non-U.S. Holders
of Capital Stock" and in the Registration Statement under Item
15, insofar as such statements constitute a summary of the
legal matters or documents referred to therein fairly present
the information called for with respect to such legal matters
or documents.
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, 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 Initial Closing
Date to the effect that (i) the Registration Statement and the Prospectuses and
any further amendments or supplements thereto made by the Company prior to the
Initial 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
Prospectuses, as to which such counsel need express no belief) appear on their
face to be
<PAGE>
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, Price Waterhouse
LLP, the Underwriters, the Selling Stockholders and Cravath, Swaine & Moore in
connection with the preparation of the Registration Statement, and based on the
foregoing and without assuming responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or making any
independent check or verification thereof (and relying as to factual matters
upon the statements of officers and other representatives of the Company, the
Selling Stockholders and others), no facts have come to the attention of such
counsel which lead them to believe that (I) the Registration Statement, as of
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading (other than the information omitted
therefrom in reliance on Rule 430A), or (II) any of the Prospectuses as amended
or supplemented, as of its date and as of each Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in 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 Prospectuses.
(c) The Underwriters shall also have received from Richard L.
Krzyzanowski, Executive Vice President, Secretary and General Counsel of the
Company, an opinion, dated the Initial Closing Date, to the effect that:
(i) Each of the Company and its material subsidiaries
listed on Schedule III 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 the Company 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 the Company and
its subsidiaries, taken as a whole.
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be made by the Company for the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except such as have
been obtained or made under the Act and such as may be
required under state securities and blue sky laws.
<PAGE>
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby will not result in a material breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, rule, regulation or order of any
governmental agency or body of any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any material agreement or instrument to
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the articles of incorporation or bylaws of the
Company or any such subsidiary; and to the best of such
counsel's knowledge, neither the Company nor any of its
material subsidiaries is in violation of its articles or
incorporation or bylaws, or in material default under any
material agreement, indenture or instrument.
(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 the Company 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 the Company 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 Initial Closing
Date to the effect that (a) each document filed by the Company 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 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 the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading (other than the
<PAGE>
information omitted therefrom in reliance on Rule 430A), or (II) any of the
Prospectuses as amended or supplemented, as of its date and as of each Closing
Date, contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in 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 Prospectuses.
(d) You shall have received an opinion of Sullivan & Cromwell,
special counsel for the Selling Stockholders, dated the Initial Closing
Date, that:
(i) All regulatory consents, authorizations,
approvals and filings required to be made or obtained by the
Selling Stockholders under the Federal laws of the United
States and the laws of the State of New York for the sale and
delivery of the Shares by the Selling Stockholders to the
Underwriters have been obtained or made.
(ii) Insofar as New York law is concerned, upon
delivery of and payment for the Shares to be sold to the
Underwriters in the State of New York pursuant to this
Agreement, the Underwriters will have acquired the Shares free
of any adverse claim within the meaning of Section 8-302 of
the New York Uniform Commercial Code (the "Code").
(iii) The execution and delivery by the Selling
Stockholders of this Agreement and the sale by the Selling
Stockholders of the Shares in accordance with this Agreement
will not violate any existing Federal law of the United States
or law of the State of New York.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the United States
of America and laws of the State of New York.
(e) You shall have received an opinion of Michel Renault,
General Counsel of CGIP, dated the Initial Closing Date, that:
(i) This Agreement has been duly authorized, executed
and delivered on behalf of the Selling Stockholders.
(ii) The sale of the Shares to be sold by the Selling
Stockholders as contemplated by this Agreement and the
execution delivery and performance of this Agreement by the
Selling Stockholders will not conflict with or constitute a
breach of any of the terms or provisions of, or constitute a
default
<PAGE>
under, any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument known
to such counsel to which such Selling Stockholder is a party
or by which it may be bound (including the restrictions
contained in the Shareholders Agreement, which have been fully
waived or satisfied), nor will such action result in any
violation or breach of the provisions of the statuts of such
Selling Stockholder or any law or administrative regulation or
administrative or court decree or order of any court or
governmental authority or agency known by such counsel to be
applicable to such Selling Stockholder.
(iii) No consent, approval, authorization, order,
filing, registration or qualification of or with any court or
governmental authority or agency is required for the sale of
the Shares by the Selling Stockholders as contemplated by this
Agreement (except such counsel need express no opinion as to
any necessary qualification under the securities laws of any
foreign country).
(iv) The Selling Stockholders have full right, power
and authority to sell, assign, transfer and deliver, or to
cause to be sold, assigned, transferred and delivered, the
Shares to be sold by the Selling Stockholders to the
Underwriters.
(v) The sale of the Shares as contemplated by this
Agreement is not subject to any contractual restrictions on
transfer, except the restrictions on transfers contained in
the Shareholders Agreement, which have been fully waived or
satisfied.
(vi) Upon delivery of the Shares to the Underwriters,
and payment therefor by the Underwriters pursuant to this
Agreement, good and valid title to the Shares, free and clear
of all liens, encumbrances, equities or claims has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may state that his
opinion is limited to matters governed by the laws of the Republic of France.
The foregoing opinion does not address compliance by the Underwriters with
foreign securities laws with respect to resales of the Shares in France.
(f) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, an opinion, dated the Initial
Closing Date, with respect to such matters as the U.S. Representatives
may reasonably request.
(g) The Underwriters shall have received from the President or
any Vice President and a principal financial or accounting officer of
the Company a certificate, dated the Initial Closing Date, in which
such officers shall state that, to the best of their knowledge and
after reasonable investigation, (i) the Registration Statement as of
<PAGE>
the Effective Time, and the Prospectuses as of the date of any
filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and since the Effective
Time, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectuses; (ii) there has not been, since the respective dates as
of which information is given in the Registration Statement and the
Prospectuses, any change or event that would be likely to have a
Material Adverse Effect, whether or not arising in the ordinary course
of business; (iii) in the case of representations and warranties in
Section 2 qualified as to materiality, such representations and
warranties are true and correct in all respects, and in the case of
representations and warranties not so qualified, such representations
and warranties are true and correct in all material respects, in each
case on the part of the Company with the same force and effect as
though made on and as of the Initial Closing Date and the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Initial
Closing Date; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(h) The Underwriters shall have received from the Selling
Stockholders a certificate, signed by the President or any Vice
President and a principal financial or accounting officer of CGIP,
dated the Closing Date, in which such officers shall state that, to the
best of their knowledge and after reasonable investigation, (i) the
Selling Stockholders' Information contained in the Registration
Statement as of the Effective Time, or in any Prospectus as of the date
of any filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (ii) in the case of
representations and warranties in Section 3 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Selling
Stockholders with the same force and effect as though made on the
Initial Closing Date and the Selling Stockholders have complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Initial Closing Date.
(i) The Underwriters shall have received from Price Waterhouse
LLP, independent public accountants, two letters, the first dated the
date of this Agreement and the other dated the Initial Closing Date,
addressed to the Board of Directors of the Company, the Underwriters
and the Selling Stockholders (with conformed copies for each of the
Underwriters), substantially in the form of Annex A hereto with such
variations as are reasonably acceptable to the U.S.
Representatives.
<PAGE>
(j) The Underwriters shall have received from Befec-Price
Waterhouse, independent public accountants, two letters, the first
dated the date of this Agreement and the other dated the Initial
Closing Date, addressed to the Board of Directors of the Company, the
Underwriters and the Selling Stockholders (with conformed copies for
each of the Underwriters), substantially in the form of Annex B hereto
with such variations as are reasonably acceptable to the U.S.
Representatives.
The several obligations of the U.S. Underwriters to purchase
the Additional Shares hereunder are subject to (i) the accuracy (A) in all
material respects of the representations and warranties of the Company and the
Selling Stockholders contained herein that are qualified as to materiality and
(B) in all respects of such representations and warranties that are not so
qualified, in each case as though made on and as of the Option Closing Date,
(ii) the performance by the Company and the Selling Stockholders of their
respective obligations hereunder, (iii) satisfaction on and as of the Option
Closing Date of the conditions set forth in subsections (a) to (j) of this
Section 7, inclusive (and, for purposes thereof, each reference therein to the
Initial Closing Date shall be deemed to refer to the Option Closing Date), and
(iv) the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 11.
SECTION 8. Payment of Expenses. Other than the fees and
expenses of the Company's counsel and accountants, the Selling Stockholders will
pay all costs, expenses, fees, disbursements and taxes incident to the sale of
the Shares contemplated hereby and in the International Underwriting Agreement,
including without limitation (i) the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), the Prospectuses, each Preliminary Prospectus and all amendments and
supplements to any of them prior to or during the period specified in Section
6(b), (ii) the printing, reproduction and distribution of this Agreement and the
International Underwriting Agreement, and all other underwriting and selling
group documents by mail, telex or other means, (iii) the registration with the
Commission of the Shares, (iv) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
and the preparation, printing and distribution of Preliminary and Supplemental
Blue Sky Memoranda and Legal Investment Survey (including the reasonable fees
and disbursements of the U.S. Underwriters' counsel relating to the foregoing),
(v) filing fees incurred in connection with the National Association of
Securities Dealers, Inc.'s review of the offering's underwriting terms and
arrangements, (vi) the fees and expenses of the Registrar and Transfer Agent for
the Shares and its counsel and (vii) the fees and expenses of the Selling
Stockholders' counsel and accountants.
If the sale of the U.S. Shares provided for herein is not
consummated because of the failure to satisfy any condition to the obligations
of the U.S. Underwriters, because of any breach of any representation, warranty
or covenant of the Company or the Selling Stockholders contained in this
Agreement, because of any termination pursuant to Section 11 hereof or because
of any refusal, failure or inability of the Company or the Selling Stockholders
to perform any agreement herein or comply with any provision hereof other than
<PAGE>
by reason of a default by any U.S. Underwriter, the Selling Stockholders shall
reimburse the U.S. Underwriters for all of their reasonable out-of-pocket
expenses incurred in connection with marketing and preparing for the offering of
the Shares, including the reasonable fees and disbursements of counsel for the
U.S. Underwriters.
SECTION 9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
the U.S. Underwriters and the Selling Stockholders and each person, if
any, who controls any U.S. Underwriter or any Selling Stockholder
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) (including, without
limiting the foregoing, the reasonable legal and other expenses
incurred in connection with investigating or defending or preparing to
defend or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action, as such expenses are
incurred), insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the U.S. Prospectus or any U.S. Preliminary Prospectus, or
are caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except (i) the Company shall not be
liable to any U.S. Underwriter under the indemnity agreement in this
paragraph (a) with respect to any U.S. Preliminary Prospectus to the
extent that such losses, claims, damages, liabilities or expenses
result from the fact that such U.S. Underwriter sold Shares to a person
as to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the U.S. Prospectus or of the U.S.
Prospectus as then amended or supplemented in any case where such
delivery is required by the Act if the loss, claim, damage or liability
of such U.S. Underwriter results from an untrue statement or omission
of a material fact contained in the U.S. Preliminary Prospectus which
was corrected in the U.S. Prospectus or in the U.S. Prospectus as then
amended or supplemented if the Company had previously furnished copies
thereof to such U.S. Underwriter and (ii) insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with (x) written
information furnished to the Company by or on behalf of the U.S.
Underwriters specifically for use in the Registration Statement, the
U.S. Prospectus or any U.S. Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any U.S.
Underwriter consists of (A) the last paragraph of text on the cover
page of the U.S. Prospectus (and any U.S. Preliminary Prospectus)
concerning the terms of the offering by the U.S. Underwriters, (B) the
second and third paragraphs on page 3 of the U.S. Prospectus (and any
U.S. Preliminary Prospectus) concerning over-allotment and
stabilization by the U.S. Underwriters and exemptions from Rules 10b-6,
10b-7 and 10b-8 under the Exchange Act and (C) the text under the
caption "Underwriting" in the U.S. Prospectus (and any U.S. Preliminary
<PAGE>
Prospectus) concerning the terms of the offering by the U.S.
Underwriters and the delivery of Shares pursuant thereto (collectively,
the "Underwriters' Information") or (y) written information furnished
to the Company by or on behalf of the Selling Stockholders specifically
for use in the Registration Statement, the U.S. Prospectus or any U.S.
Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Selling Stockholder consists of the
information under the caption "Selling Shareholders" in the U.S.
Prospectus (or any U.S. Preliminary Prospectus), other than in respect
of the Company's outstanding capitalization (collectively, the "Selling
Stockholders' Information"). This indemnity agreement will be in
addition to any liability which the Company may otherwise have to the
persons referred to above in this Section 9(a). Notwithstanding
anything to the contrary in this Agreement, the Company shall not be
liable to any Selling Stockholder under the indemnity agreement in this
paragraph (a) or for any breach of any representation or warranty of
the Company set forth in Section 2 with respect to the statements in
the U.S. Prospectus (or any U.S. Preliminary Prospectus) relating to
the terms and provisions of the Shareholders Agreement.
(b) The Selling Stockholders agree, jointly and severally, to
indemnify and hold harmless each of the U.S. Underwriters and each
person, if any, who controls any U.S. Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act and the
Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either such Section, from and against any and all losses,
claims, damages and liabilities (or actions in respect thereof)
(including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending
or preparing to defend or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action, as
such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the U.S. Prospectus or any U.S.
Preliminary Prospectus or are caused by any omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only in
each case with reference to the Selling Stockholders' Information;
provided, however, that the Selling Stockholders shall not be liable to
any U.S. Underwriter under the indemnity agreement in this paragraph
(b) with respect to any U.S. Preliminary Prospectus to the extent that
such losses, claims, damages, liabilities or expenses result solely
from the fact that such U.S. Underwriter sold Shares to a person as to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the U.S. Prospectus or of the U.S.
Prospectus as then amended or supplemented in any case where such
delivery is required by the Act if the loss, claim, damage or liability
of such U.S. Underwriter results from an untrue statement or omission
of a material fact contained in the U.S. Preliminary Prospectus which
was corrected in the U.S. Prospectus or in the U.S. Prospectus as then
amended or supplemented if the Company had previously furnished
<PAGE>
copies thereof to such U.S. Underwriter. This indemnity agreement will
be in addition to any liability which the Selling Stockholders may
otherwise have to the persons referred to above in this Section 9(b).
Notwithstanding anything to the contrary in this Agreement, the
Selling Stockholders shall not be liable to the Company under the
indemnity agreement in this paragraph (b) or for any breach of any
representation or warranty of the Selling Stockholders set forth in
Section 3 with respect to the statements in the U.S. Prospectus (or
any U.S. Preliminary Prospectus) relating to the terms and provisions
of the Shareholders Agreement.
(c) Each U.S. Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Selling Stockholders,
the directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with investigating or
defending or preparing to defend or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action,
as such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the U.S. Prospectus or any U.S.
Preliminary Prospectus, or are caused by any omission or 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. This indemnity
agreement will be in addition to any liability which the U.S.
Underwriters may otherwise have to the persons referred to above in
this Section 9(c).
(d) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing; however, the omission to so notify
the indemnifying party shall relieve the indemnifying party from
liability under the three preceding paragraphs only to the extent
prejudiced thereby. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may desire, to assume
the defense thereof through counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in
<PAGE>
connection with the defense thereof, other than reasonable costs of
investigation (unless such indemnified party reasonably objects to
such assumption on the grounds that there may be defenses available to
it which are different from or in addition to those available to such
indemnifying party in which event the indemnified party shall be
reimbursed by the indemnifying party for the reasonable expenses
incurred in connection with retaining separate legal counsel). No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any claim or pending or
threatened proceeding in respect of the indemnified party is or could
have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
(e) If the indemnification provided for in this Section 9 is
insufficient or unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses in such proportion as is
appropriate to reflect the relative fault of the Company, the Selling
Stockholders and the U.S. Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, the Selling
Stockholders and the U.S. Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Selling Stockholders or by the U.S. Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, each Selling Stockholder and each of the U.S.
Underwriters agree that it would not be just and equitable if
contribution pursuant to Section 9(e) were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in the
immediately preceding paragraph shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(e), in no event shall any
U.S. Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the U.S. Shares underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such U.S. Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or
<PAGE>
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 U.S. Underwriters' obligations to contribute
pursuant to Section 9(e) are several in proportion to the respective
number of U.S. Firm Shares set forth opposite their names in Schedule I
hereto and not joint.
(g) The Company, the Selling Stockholders and the U.S.
Underwriters agree that any indemnity provision contained in Section
5.5 of the Shareholders Agreement or any other agreement between the
Company on the one hand and the Selling Stockholders on the other shall
be superseded for all purposes by this Section 9 in respect of the
offer and sale of the Shares.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company or the
Selling Stockholders submitted pursuant hereto, including indemnity and
contribution agreements, shall remain operative and in full force and effect,
regardless of any investigation, or any statement as to the results thereof,
made by or on behalf of any U.S. Underwriter or any person controlling any U.S.
Underwriter or by or on behalf of the Company, its officers or directors or
controlling persons, or by any Selling Stockholder or any person controlling any
Selling Stockholder, and shall survive acceptance of and payment for the U.S.
Shares hereunder.
SECTION 11. Termination. This Agreement may be terminated for
any reason at any time prior to the delivery of and payment for the U.S. Shares
on the Initial Closing Date or the Option Closing Date, as the case may be, by
the U.S. Underwriters upon the giving of written notice by Lazard Freres & Co.
LLC of such termination to the Company and the Selling Stockholders, if prior to
such time (i) there has been, since the respective dates as of which information
is given in the Registration Statement and the U.S. Prospectus, any Material
Adverse Effect, whether or not arising in the ordinary course of business, (ii)
there has occurred any outbreak or escalation of major hostilities or other
national or international calamity or crisis or material adverse change in
existing national or international financial, political, economic or securities
market conditions, the effect of which is such as to make it, in the judgement
of Lazard Freres & Co. LLC, impracticable or inadvisable to market the Shares in
the manner contemplated in the Prospectuses or enforce contracts for the sale of
the Shares, or (iii) trading in the Common Stock of the Company has been
suspended by the Commission or a national securities exchange, or trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
a banking moratorium has been declared by either Federal or New York
authorities. In the event of any such termination, the provisions of Section 8,
the indemnity agreement and contribution provisions set forth in Section 9, and
the provisions of Section 15 shall remain in effect and, if the U.S.
Underwriters shall have
<PAGE>
purchased any U.S. Shares on the Initial Closing Date prior to such termination,
then all representations and warranties of the Company and the Selling
Stockholders set forth in or made pursuant to this Agreement and all obligations
of the Company pursuant to Section 6 hereof shall survive such termination.
SECTION 12. Default of U.S. Underwriters. If, on the Initial
Closing Date or the Option Closing Date, as the case may be, any one or more of
the U.S. Underwriters shall fail or refuse to purchase U.S. Shares that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
U.S. Shares which such defaulting U.S. Underwriter or U.S. Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the U.S. Shares to be purchased on such date by all U.S. Underwriters,
the other U.S. Underwriters shall be obligated severally in the proportions that
the number of U.S. Firm Shares set forth opposite their respective names in
Schedule I bear to the aggregate number of U.S. Firm Shares set forth opposite
the names of all such non-defaulting U.S. Underwriters, or in such other
proportions as the U.S. Representatives may specify, to purchase the U.S. Shares
which such defaulting U.S. Underwriter or U.S. Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
U.S. Shares that any U.S. Underwriter has agreed to purchase pursuant to Section
4 be increased pursuant to this Section 12 by an amount in excess of one-ninth
of such number of U.S. Shares without the written consent of such U.S.
Underwriter. If, on the Initial Closing Date or the Option Closing Date, as the
case may be, any U.S. Underwriter or U.S. Underwriters shall fail or refuse to
purchase U.S. Shares and the aggregate number of U.S. Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of U.S.
Shares to be purchased on such date, and arrangements satisfactory to the U.S.
Representatives, the Company and the Selling Stockholders for the purchase of
such U.S. Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any nondefaulting U.S.
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be paid or reimbursed by the Company pursuant to Section 8 and the respective
obligations of the Company, the Selling Stockholders and the U.S. Underwriters
pursuant to Section 9; provided, however, that if the U.S. Underwriters shall
have purchased any U.S. Shares on the Initial Closing Date prior to such
termination, then all representations and warranties of the Company and the
Selling Stockholders set forth in or made pursuant to this Agreement and all
obligations of the Company pursuant to Section 6 hereof shall survive such
termination. In any such case either the U.S. Representatives or the Company
shall have the right to postpone the Initial Closing Date or the Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectuses or in any other documents or arrangements may be effected. As used
in this Agreement, the term "U.S. Underwriter" includes any person substituted
for a U.S. Underwriter under this Section. Any action taken under this paragraph
shall not relieve any defaulting U.S. Underwriter from liability in respect of
any default of such U.S. Underwriter under this Agreement.
<PAGE>
SECTION 13. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
U.S. Underwriters shall be directed to the U.S. Representatives c/o Lazard
Freres & Co. LLC, 30 Rockefeller Plaza, New York, NY 10020, Attention: Syndicate
Department; notices to the Company shall be directed to it at Crown Cork & Seal
Company, Inc., 9300 Ashton Road, Philadelphia, PA 19136, facsimile transmission
no. (215) 698-7050, Attention: Alan W. Rutherford, Executive Vice President and
Chief Financial Officer, and Richard L. Krzyzanowski, Executive Vice President,
Secretary and General Counsel; and notices to the Selling Stockholders shall be
directed to Compagnie Generale d'Industrie et de Participations, 89 rue
Taitbout, 75009 Paris, France, Attention: Michel Renault, with a copy to
Sullivan & Cromwell, 125 Broad Street, New York, NY 10004, facsimile
transmission no. (212) 558-3588, Attention: Allan M. Chapin.
SECTION 14. Parties. This Agreement shall inure to the benefit
of and be binding upon the Company, its directors and officers who signed the
Registration Statement, the U.S. Underwriters, the Selling Stockholders, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of U.S. Shares from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 16. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign this Agreement and return to us seven counterparts
hereof.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.,
By /s/ Craig R.L. Calle
Name: Craig R.L. Calle
Title: Senior Vice President-
Finance and Treasurer
COMPAGNIE GENERALE D'INDUSTRIE
ET DE PARTICIPATIONS,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Chairman and CEO
SOFISERVICE,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Attorney-in-Fact
<PAGE>
Confirmed and Accepted, as of the
date first above written:
LAZARD FRERES & CO. LLC
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
By: LAZARD FRERES & CO. LLC
By: /s/ James L. Kempner
Name: James L. Kempner
Title: Managing Director
Acting severally on behalf of themselves
and as U.S. Representatives
of the several U.S. Underwriters
named in Schedule I hereto.
<PAGE>
<TABLE>
<CAPTION>
Schedule I
----------
Number of U.S. Firm Shares
U.S. Underwriters to be Purchased
- ----------------- ---------------
<S> <C>
Lazard Freres & Co. LLC.................................. 1,773,334
CS First Boston Corporation.............................. 1,773,333
Salomon Brothers Inc..................................... 1,773,333
Bear, Stearns & Co. Inc.................................. 110,000
Alex. Brown & Sons Incorporated.......................... 110,000
Chase Securities Inc..................................... 110,000
Deutsche Morgan Grenfell Inc............................. 110,000
Dillon, Read & Co. Inc................................... 110,000
Donaldson, Lufkin & Jenrette Securities Corporation...... 110,000
Hambrecht & Quist LLC.................................... 110,000
Lehman Brothers Inc...................................... 110,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated....... 110,000
J.P. Morgan Securities Inc............................... 110,000
Morgan Stanley & Co. Incorporated........................ 110,000
PaineWebber Incorporated................................. 110,000
Schroder Wertheim & Co. Incorporated..................... 110,000
Societe Generale Securities Corp........................ 110,000
Allen & Company Incorporated............................. 60,000
Janney Montgomery Scott Inc.............................. 60,000
Jefferies & Company, Inc.. .............................. 60,000
Edward D. Jones & Co., L.P............................... 60,000
Parker/Hunter Incorporated............................... 60,000
Pennsylvania Merchant Group Ltd.......................... 60,000
Pryor, McClendon, Counts & Co............................ 60,000
Raymond James & Associates, Inc.......................... 60,000
Wheat First Butcher Singer............................... 60,000
------
Total.......................................... 7,400,000
=========
</TABLE>
<PAGE>
Schedule II
------------
Number of U.S. Firm
Selling Stockholder Shares to be Sold
- ------------------- -----------------
Compagnie Generale de'Industrie et
de Participations 5,794,458
Sofiservice 1,605,542
---------
Total 7,400,000
=========
<PAGE>
Schedule III
-------------
Material Subsidiaries
---------------------
CONSTAR International Inc.
Crown Beverage Packaging, Inc.
Exhibit B
1,850,000 Shares
Crown Cork & Seal Company, Inc.
COMMON STOCK
($5.00 PAR VALUE)
INTERNATIONAL UNDERWRITING AGREEMENT
October 24, 1996
Lazard Capital Markets
CS First Boston Limited
Salomon Brothers International Limited
c/o Lazard Capital Markets
21 Moorfields
London EC2P 2HT England
Dear Sirs:
SECTION 1. Introductory. Compagnie Generale d'Industrie et de
Participations, a societe anonyme organized under the laws of the Republic of
France ("CGIP"), and Sofiservice, a societe anonyme organized under the laws of
the Republic of France and a wholly owned subsidiary of CGIP ("Sofiservice" and,
together with CGIP, the "Selling Stockholders"), propose to sell to the several
Underwriters named in Schedule I hereto (the "International Underwriters"), for
whom Lazard Capital Markets, CS First Boston Limited and Salomon Brothers
International Limited are acting as representatives (the "International
Representatives"), an aggregate of 1,850,000 shares (the "International Shares")
of Common Stock, par value $5.00 per share (the "Common Stock"), of Crown Cork &
Seal Company, Inc. (the "Company"), each Selling Stockholder selling the amount
set forth opposite such Selling Stockholder's name in Schedule II hereto.
It is understood that the Company and the Selling Stockholders
are concurrently entering into an underwriting agreement dated the date hereof
(the "U.S. Underwriting Agreement") in which the Selling Stockholders propose to
sell to the several Underwriters named therein (the "U.S. Underwriters") for
whom Lazard Freres & Co. LLC, CS First Boston Corporation and Salomon Brothers
Inc are acting as representatives (the "U.S. Representatives") an aggregate of
7,400,000 shares (the "U.S Firm Shares") of the
<PAGE>
Company's Common Stock. In addition, CGIP has agreed to sell to the U.S.
Underwriters, upon the terms and conditions set forth in the U.S. Underwriting
Agreement, up to an additional 1,387,500 shares of Common Stock (the "Additional
Shares"). The U.S. Firm Shares and the Additional Shares are hereinafter
sometimes collectively referred to as the "U.S. Shares". The respective closings
under this Agreement and the U.S. Underwriting Agreement are hereby expressly
made conditional on one another.
The International Shares and the U.S. Shares are herein
collectively referred to as the "Shares". The International Underwriters and the
U.S. Underwriters are herein collectively referred to as the "Underwriters".
It is further understood that the International
Representatives on behalf of the International Underwriters and the U.S.
Representatives on behalf of the U.S. Underwriters have entered into an
agreement of even date herewith (the "Agreement Among U.S. and International
Underwriters"), contemplating the coordination of certain transactions among the
International and U.S. Underwriters and that, pursuant thereto and subject to
the conditions set forth therein, the U.S. Underwriters may purchase from or
sell to the International Underwriters a portion of the U.S. Shares and the
International Underwriters may purchase from or sell to the U.S. Underwriters a
portion of the International Shares. Any such purchases or sales shall be
governed by the Agreement Among U.S. and International Underwriters and not by
the terms of this Agreement.
It is further understood that the Company and the Selling
Stockholders are concurrently entering into an underwriting agreement dated the
date hereof (the "Preferred Underwriting Agreement") in which the Selling
Stockholders propose to sell to the several Underwriters named therein (the
"Preferred Underwriters") an aggregate of 3,000,000 shares (the "Preferred Firm
Shares") of the Company's 4.5% Convertible Preferred Stock, par value $41.8875
per share (the "Preferred Stock"). In addition, CGIP has agreed to sell to the
Preferred Underwriters, upon the terms and conditions set forth in the Preferred
Underwriting Agreement, up to an additional 450,000 shares of Preferred Stock
(the "Preferred Additional Shares" and, collectively with the Preferred Firm
Shares, the "Preferred Shares"). The respective closings under this Agreement
and the U.S. Underwriting Agreement, on the one hand, and the Preferred
Underwriting Agreement, on the other hand, are not conditional on one another.
The Company and the Selling Stockholders hereby agree with the
International Underwriters as follows (it being understood and agreed that the
obligations set forth herein are several in nature, unless expressly stated to
the contrary):
<PAGE>
SECTION 2. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to, and agrees with, (i) the
several International Underwriters and (ii) in the case of clauses (a), (b),
(c), (j) and (n) and the second sentence of clause (g) below only, the Selling
Stockholders (it being understood and agreed that such representations and
warranties to the Selling Stockholders are being made solely in connection with
the sale of the Shares under this Agreement and the U.S. Underwriting Agreement
and subject to the last sentence of Section 9(a)), that:
(a) The Company meets the registrant requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on Form S-3 (File No. 333-12787), including
forms of prospectuses relating to the Shares, has been filed by the
Company pursuant to the Act with the Securities and Exchange Commission
(the "Commission"). The Company may have filed one or more amendments
thereto, including the related Preliminary Prospectuses (as defined
below), each of which (other than documents incorporated by reference
therein) has previously been furnished to you. The Company will file
with the Commission either (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement (including the forms of final prospectuses relating to the
Shares) or (ii) after effectiveness of such registration statement,
final prospectuses relating to the Shares in accordance with Rules 430A
and 424(b)(1) or (4) under the Act. In the case of clause (ii), the
Company has included or shall include in such registration statement,
as amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from such registration
statement when it becomes effective pursuant to Rule 430A ("Rule 430A
Information")) required by the Act and the rules and regulations
thereunder (the "Rules and Regulations") to be included in the final
prospectuses with respect to the Shares and the offering thereof. As
filed, such amendment and forms of final prospectuses, or such final
prospectuses, shall contain all Rule 430A Information, together with
all other such required information, with respect to the Shares and the
offering thereof, and, except to the extent you shall agree in writing
to a modification (which shall not be unreasonably withheld or
delayed), shall be in all substantive respects in the form furnished to
you prior to the execution of this Agreement or, to the extent not in
such form, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectuses) as the Company has advised the International
Representatives, prior to the execution of this Agreement, will be
included or made therein. For purposes of this Agreement, "Effective
Time" means the time as of which such registration statement or the
most recent post-effective amendment thereto, if any, was or is
declared effective by the Commission and each date after the date
hereof on which a document incorporated by reference in the
Registration Statement is filed. "Effective Date" means the date of the
Effective Time. The registration statement contains two prospectuses to
be used in connection with the offering and sale of the Shares: the
U.S. prospectus relating to the U.S. Shares and the international
prospectus relating to the International Shares. The international
prospectus is identical to the U.S. prospectus, except the
<PAGE>
international prospectus contains different front and back cover pages
and different descriptions of the plan of distribution (contained under
the caption "Underwriting" in each of the U.S. and international
prospectus). Such registration statement, as amended at the Effective
Time, including incorporated documents, exhibits and financial
statements, and including all Rule 430A Information, if any, and, any
post-effective amendment thereto that becomes effective prior to the
Closing Date (as defined below) is hereinafter referred to as the
"Registration Statement", and the U.S. prospectus relating to the U.S.
Shares and the international prospectus relating to the International
Shares in the forms first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or, if no
such filing is required, as included in the Registration Statement, are
hereinafter referred to as the "U.S. Prospectus" and the "International
Prospectus", respectively, and collectively as the "Prospectuses". Any
preliminary prospectus relating to the U.S. Shares or the International
Shares included in such Registration Statement or filed pursuant to
Rule 424(a) under the Act is hereinafter referred to as a "U.S.
Preliminary Prospectus" or an "International Preliminary Prospectus",
respectively, and collectively as "Preliminary Prospectuses". Any
reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectuses shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934
(the "Exchange Act") on or before the Effective Time of the
Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectuses, as the case may be, and references to information
being "included", "contained" or "set forth in" any such document (or
similar expressions) shall be similarly construed; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectuses shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Time of the
Registration Statement, or the issue date of any Preliminary Prospectus
or the Prospectuses, as the case may be, deemed to be incorporated
therein by reference.
(b) At the Effective Time, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 4), the Prospectuses (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act
and the Rules and Regulations; at the Effective Time, the Registration
Statement did not or will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, at the Effective Time, the Prospectuses, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectuses (and any supplements thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
<PAGE>
sentence does not apply to information contained in or omitted from the
Registration Statement or the Prospectuses (or any supplement thereto)
in reliance upon and in conformity with the Underwriters' Information
or the Selling Stockholders' Information (as defined in Section 9(a)).
(c) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose shall have been instituted or threatened
by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements
of the Act and the Rules and Regulations, and did not contain any
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; except that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with the
Underwriters' Information or the Selling Stockholders' Information.
(d) The historical consolidated financial statements included
in the Registration Statement and the Prospectuses (and any amendment
or supplement thereto) present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations, the statements of their cash flows and the changes in their
financial position for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved
(except as described in the notes to such financial statements); and
the supporting schedules, if any, included in the Registration
Statement present fairly in all material respects the information
required to be stated therein. The pro forma financial statements
included in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto) have been prepared on a basis
consistent with such historical financial statements (except as
described in such pro forma financial statements), include all material
adjustments to the historical financial data required to reflect the
transactions to which pro forma effect is given, give effect to
assumptions made on a reasonable basis, and present fairly in all
material respects on a pro forma basis the estimated consolidated
financial position and results of operations of the Company and its
consolidated subsidiaries assuming that such transactions had occurred
on the date specified therein.
(e) There has not been sustained since the date of the latest
audited financial statements included in the Prospectuses any material
adverse change in the financial condition, results of operations or
business of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"), except as set forth in the Prospectuses.
(f) The Company and each of its subsidiaries have been duly
incorporated and are validly existing in good standing under the laws
<PAGE>
of their respective jurisdictions of organization with power and
authority to own, lease and operate their properties and conduct their
businesses as described in the Registration Statement and the
Prospectuses; and each of them is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases properties or in which the
conduct of its business requires such qualification, except to the
extent that any such failure to be so qualified or be in good standing
would not, individually or in the aggregate, have a Material Adverse
Effect.
(g) The Company has an authorized capitalization as set forth
in the Prospectuses, and all shares of capital stock of the Company
outstanding, including the Shares, have been duly authorized, are
validly issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectuses. The sale of the Shares is not subject to pre-emptive or
other similar rights or restrictions on transfer created by the Company
under the Company's articles of incorporation or bylaws, under
applicable law or under any agreement to which the Company is a party
or of which the Company has actual knowledge (other than those imposed
by the Act, the Rules and Regulations, foreign securities laws or state
securities or Blue Sky laws and other than restrictions on transfers
contained in that certain Shareholders Agreement, dated February 22,
1996, between the Company and CGIP (the "Shareholders Agreement") which
have been fully waived or satisfied); and the Shares are duly listed
and admitted for trading on the New York Stock Exchange (the "NYSE").
(h) All of the issued and outstanding capital stock of each
material subsidiary of the Company listed on Schedule III hereto has
been duly authorized and validly issued and is fully paid and
non-assessable, and, except as set forth in the Prospectuses, all the
issued and outstanding capital stock of each such material subsidiary
is owned, directly or through subsidiaries, by the Company, free and
clear of any pledge, lien, encumbrance, adverse claim or equity
(collectively, a "Lien"), except for any such Liens that would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) Neither the Company nor any of its subsidiaries is in
violation of its or any of their charters or by-laws or other
organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which it or any of them or their properties may be bound,
except any violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration,
filing or qualification by or on behalf of the Company or any of its
subsidiaries of or with any court or governmental authority or agency
or of the NYSE is required for the sale of the Shares or the
<PAGE>
consummation of the transactions contemplated by this Agreement and the
U.S. Underwriting Agreement, except such as may be required under the
Act, the Rules and Regulations or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters; and the execution and delivery of this Agreement and the
U.S. Underwriting Agreement, and the consummation of the transactions
contemplated herein and therein will not (i) conflict with or
constitute a breach of any of the terms or provisions of, or default
under, or result in the creation or imposition of any Lien upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject that is material to the Company and its
subsidiaries taken as a whole, (ii) result in any violation or breach
of the provisions of the charter or by-laws or other organizational
documents of the Company or any of its subsidiaries or (iii) result in
any violation of any law, administrative regulation or administrative
or court decree or order applicable to the Company, any of its material
subsidiaries or their respective property.
(k) The Company and its subsidiaries are in compliance with
all laws and regulations applicable to them and their respective
properties and possess all certificates, authorities or permits issued
by, and have made all filings with, the appropriate state, local,
Federal or foreign regulatory agencies or bodies necessary or desirable
to conduct the business now operated by them, except where
noncompliance with such laws or regulations or the failure to possess
or make the same would not, individually or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation, termination or modification of any such certificate,
authority, permit or filing, other than any such revocation,
termination or modification that would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Except as described in the Prospectuses, there are no
actions, suits or proceedings before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, contemplated or threatened against the Company or any
of its subsidiaries, or to which any of their respective properties is
subject, which, (i) if adversely determined, would, individually or in
the aggregate, result in any Material Adverse Effect or (ii) questions
the validity of this Agreement or any action taken or required to be
taken pursuant hereto.
(m) Each of the Company and its subsidiaries has good and
marketable title to all real and personal property owned by it, in each
case free and clear of any Lien, except (i) such as are referred to in
the Prospectuses or (ii) such as would not, individually or in the
aggregate, have a Material Adverse Effect; and any real property and
<PAGE>
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as would not, individually or in the aggregate, have a
Material Adverse Effect.
(n) This Agreement has been duly authorized,
executed and delivered by the Company.
(o) Other than the Shareholders Agreement, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities under the Registration Statement.
(p) Except as set forth in the Prospectuses
under the caption "Underwriting", neither the Company
nor, to the Company's knowledge, any of its officers
or directors or any of their respective affiliates is a
member of, or is associated or affiliated with a
member of, the National Association of Securities
Dealers, Inc. ("NASD").
SECTION 3. Representations, Warranties and Agreements of the
Selling Stockholders. Each Selling Stockholder, jointly and severally,
represents and warrants to, and agrees with, (i) the several International
Underwriters and (ii) the Company (it being understood and agreed that such
representations and warranties to the Company are being made solely in
connection with the sale of the Shares under this Agreement and the U.S.
Underwriting Agreement and subject to the last sentence of Section 9(b)), that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) Such Selling Stockholder has the legal right and power to
execute and deliver this Agreement and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder in the manner
provided in this Agreement and the U.S. Underwriting Agreement, and no
such action will result in any violation or breach of the provisions of
the charter or by-laws or other organizational documents of such
Selling Stockholder or any agreement or other instrument binding upon
such Selling Stockholder (including the restrictions on transfer
contained in the Shareholders Agreement, which have been fully waived
or satisfied) or any law, administrative regulation or administrative
or court decree or order applicable to such Selling Stockholder; and no
consent, approval, authorization, order, registration, filing or
qualification of or with any court or governmental authority or agency
or of the NYSE is required for the consummation of the transactions
contemplated by this Agreement and the U.S. Underwriting Agreement in
connection with the sale of the Shares by such Selling Stockholder,
except such as may be required under the Act, the Rules and Regulations
<PAGE>
or state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters.
(c) Such Selling Stockholder has, and will deliver to the
Underwriters upon payment therefor good and marketable title to the
Shares to be sold by such Selling Stockholder, free and clear of any
Lien.
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(e) At the Effective Time, the Selling Stockholders'
Information contained in the Registration Statement did not or will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements in the Selling Stockholders' Information not
misleading; and, at the Effective Time, the Selling Stockholders'
Information contained in the Prospectuses, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Selling
Stockholders' Information contained in the Prospectuses (and any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements in the Selling Stockholders' Information, in the
light of the circumstances under which they were made, not misleading.
(f) There are no contracts, agreements or understandings
between the Selling Stockholders and any person that would give rise to
a valid claim against the Selling Stockholders or any Underwriter for a
brokerage commission, finder's fee or other like payment.
SECTION 4. Purchase, Sale and Delivery of International
Shares. On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, each
Selling Stockholder, severally and not jointly, hereby agrees to sell to the
International Underwriters, and each International Underwriter agrees, severally
and not jointly, to purchase from such Selling Stockholder, at a purchase price
of $44.64 per International Share, the respective number of International
Shares (subject to adjustment by the International Representatives to eliminate
fractions) that bear the same proportion to the number of International Shares
to be sold by such Selling Stockholder as the number of International Shares set
forth opposite the name of such International Underwriter in Schedule I hereto
bears to the total number of International Shares.
The obligations of the Selling Stockholders hereunder to sell
the International Shares, and the obligations of the International Underwriters
<PAGE>
to purchase the International Shares, are subject to the closing of the sale and
purchase of the U.S. Firm Shares pursuant to the U.S. Underwriting Agreement.
Each Selling Stockholder will deliver the International Shares
to be purchased by the International Underwriters to the International
Representatives for the accounts of the International Underwriters, against
payment of the purchase price therefor by wire transfer of same day funds to an
account specified in writing by such Selling Stockholder. Payment for the
International Shares shall be made at the offices of Cravath, Swaine & Moore at
10:00 A.M., New York Time, on October 30, 1996 or at such other place or time
not later than seven full business days thereafter as the International
Representatives and the Selling Stockholders determine (the "Closing Date").
The certificates for all the International Shares so to be
delivered will be in such denominations and registered in such names as the
International Representatives request two full business days prior to the
Closing Date, and will be made available at the offices of Lazard Freres & Co.
LLC, New York, New York or, upon your request, through the facilities of The
Depository Trust Company, for checking and packaging at least one full business
day prior to the Closing Date.
Each Selling Stockholder will not, without the prior written
consent of the International Representatives, offer, sell, pledge or otherwise
dispose of, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or any
rights to purchase or acquire such capital stock, for a period of one year after
the date of this Agreement; provided, however, that the foregoing restriction
shall not apply to (i) the sale of the Shares to be sold hereunder and under the
U.S. Underwriting Agreement, (ii) the sale of the Preferred Shares to be sold
under the Preferred Underwriting Agreement, (iii) any conversion of shares of
Preferred Stock into shares of Common Stock pursuant to the terms of the
Preferred Stock and (iv) any disposition of any shares of Common Stock or
Preferred Stock pursuant to a bona fide pledge or grant of a security interest
to a major brokerage firm or financial institution to secure bona fide
indebtedness, or the sale of such shares upon foreclosure on such pledge,
provided that each purchaser of such shares upon foreclosure agrees to be bound
by the provisions of this paragraph.
SECTION 5. Offering by International Underwriters. After the
Registration Statement becomes effective, the several International Underwriters
will offer the International Shares for sale to the public on the terms and
conditions as set forth in the International Prospectus.
SECTION 6. Covenants of the Company. The Company covenants and
agrees with the several International Underwriters and the Selling Stockholders
that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Prospectuses with
<PAGE>
the Commission pursuant to and in accordance with subparagraph (1) (or,
if applicable, and with the International Representatives' consent,
subparagraph (4)) of Rule 424(b) within the time period prescribed by
such rule. The Company will advise the International Representatives
promptly of any proposal to amend or supplement the Registration
Statement as filed, or the Prospectuses, and will not effect such
amendment or supplement or filing without the International
Representatives' consent (which shall not be unreasonably withheld or
delayed). The Company will also advise the International
Representatives promptly after the Company receives notice of the
effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution and delivery of this Agreement), of the
filing and effectiveness of any amendment or supplement to the
Registration Statement or the Prospectuses, and of the issuance by the
Commission of any stop order in respect of the Registration Statement
or of any order preventing or suspending the use of any Preliminary
Prospectus or any prospectus relating to the Shares or the initiation
of proceedings for any such purpose, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or of
any request by the Commission to amend or supplement the Registration
Statement or the Prospectuses or for additional information and will
use its best efforts to prevent the issuance of any such stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or any prospectus relating to the Shares or suspending any
such qualification and to obtain as soon as possible its lifting, if
issued.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result
of which the Prospectuses as then amended or supplemented would include
an untrue statement of a material fact, or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectuses or the
Registration Statement to comply with the Act, the Rules and
Regulations or any other law, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 6, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will notify the International Representatives and, upon
their request, prepare and furnish without charge to each International
Underwriter, each Selling Stockholder (except as provided below) and to
any dealer in securities as many copies as the International
Representatives may from time to time reasonably request, of amended
Prospectuses or any supplement to the Prospectuses complying with
Section 10(a) of the Act which will correct such statement or omission
or effect such compliance, it being understood and agreed that the
Selling Stockholders will pay all costs and expenses incident to the
preparation, printing, filing and distribution of any such amendment or
supplement.
(c) The Company will make generally available to the Company's
security holders as soon as practicable, but in any event not later
than 18 months after the effective date of the Registration Statement
<PAGE>
(as defined in Rule 158(c) under the Act), an earnings statement that
satisfies the provisions of Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(d) The Company will deliver to each of the International
Representatives as many conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits
filed therewith and documents incorporated therein by reference) and
copies of the Preliminary Prospectuses and the Prospectuses as the
International Representatives may reasonably request and will also
deliver to the International Representatives a conformed copy of the
Registration Statement and each amendment thereto (including exhibits
filed therewith and documents incorporated therein by reference) for
each of the International Underwriters.
(e) The Company will take such action as the International
Representatives may reasonably request, in cooperation with the
International Representatives to qualify the Shares for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the International Representatives
may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Shares; provided,
however, that in no event shall the Company be obligated in connection
therewith to qualify as a foreign corporation in any jurisdiction in
which it shall not then be qualified, or to execute a general consent
to service of process in any jurisdiction in which such a consent has
not been previously filed, or subject itself to taxation in any
jurisdiction wherein it would not otherwise be subject to tax but for
the requirements of this paragraph. The Company will file such
statements and reports as may be required by the laws of each
jurisdiction in which the Shares have been qualified as above provided.
(f) The Company agrees that neither it nor any of its
directors or the principal executive officers set forth in Item 10 of
the Company's Annual Report on Form 10-K for the year ended December
31, 1995 will, without the prior written consent of the International
Representatives, offer, sell or otherwise dispose of, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock or any rights to
purchase or acquire such capital stock, for a period of 90 days after
the date of this Agreement; provided, however, that the foregoing
restriction shall not apply to any issuances or sales (a) in connection
with stock option, savings, benefit or compensation plans or dividend
reinvestment plans in existence on the date of this Agreement or the
conversion or exchange of convertible or exchangeable securities of the
Company, (b) in connection with a merger or other combination with, or
exchange offer for shares of, or acquisition of assets of, another
entity, (c) required in the Company's judgment to prevent termination
of the Standstill Period (as defined in the Shareholders Agreement) or
(d) by such directors and officers of up to 300,000 shares of capital
stock in the aggregate; provided, further, that (i) in the case of
clauses (b), (c) and (d) above, the Company shall give the
International Underwriters at least 2 business days' prior written
notice of such issuance or sale and (ii) in the case of clauses (b)
<PAGE>
and (c) above, the recipients of any such securities shall agree to be
bound by the provisions of this paragraph.
SECTION 7. Conditions of the Obligations of the International
Underwriters. The obligations of the several International Underwriters to
purchase and pay for the International Shares on the Closing Date will be
subject (i) to the provisions of Section 11 herein, (ii) in the case of
representations and warranties qualified as to materiality, to the accuracy of
such representations and warranties in all respects, and in the case of
representations and warranties not so qualified, to the accuracy of such
representations and warranties in all material respects, in each case on the
part of the Company and the Selling Stockholders herein as of the date hereof
and as of the Closing Date with the same force and effect as if made as of that
date, (iii) to the accuracy of the statements of Company officers and Selling
Stockholder officers made in any certificates furnished pursuant to the
provisions hereof, (iv) to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and (v) to the following
additional conditions precedent:
(a) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than (i) 6:00 p.m. New York City time on the date of
determination of the offering price, if such determination occurred at
or prior to 3:00 p.m. New York City time on such date or (ii) 12:00
noon New York City time on the business day following the day on which
the offering price was determined if such determination occurred after
3:00 p.m. New York City time on such date. If the Effective Time is
prior to the execution and delivery of this Agreement, the Company
shall have filed the Prospectuses with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 6(a) hereof.
In either case, prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened by the Commission; and the Company shall have complied with
all requests for additional information on the part of the Commission
to the International Representatives' reasonable satisfaction.
(b) The Underwriters shall have received an opinion of Dechert
Price & Rhoads, counsel for the Company, dated the Closing Date, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; and the Company has the
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 Prospectuses.
(ii) This Agreement has been duly
authorized, executed and delivered by the Company.
<PAGE>
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby do not (a) conflict with or result in a
violation of any of the provisions of the articles of
incorporation or bylaws of the Company, (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 the Company or by which any
property or asset of the Company or any of its 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 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 any of its subsidiaries is a party or by which any
of them or any of its properties or assets is or may be bound.
(iv) 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 of United States Federal court having jurisdiction
over the Company or any of its properties is required to be
obtained by the Company in connection with the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except filings and
other actions required under the Act and the Rules and
Regulations and state securities and blue sky laws, as to
which such counsel need not express any opinion.
(v) The Company has an authorized capitalization as
set forth in the Prospectuses; the Shares have been duly and
validly authorized and have been duly and validly issued, and
are fully paid and nonassessable; the Shares conform in all
material respects to the description thereof in the
Prospectuses.
(vi) The Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, and, to the knowledge of such counsel, no stop
order has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The statements set forth or referred to in the
Prospectuses under the headings "Description of Capital
Stock--General", "Description of Capital Stock--Common Stock",
"Description of Capital Stock--Preferred Stock" and "Certain
United States Federal Tax Considerations for Non-U.S. Holders
of Capital Stock" and in the Registration Statement under Item
15, insofar as such statements constitute a summary of the
<PAGE>
legal matters or documents referred to therein fairly present
the information called for with respect to such legal matters
or documents.
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, 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 Prospectuses and any
further amendments or supplements thereto made by the Company 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 Prospectuses, 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, Price Waterhouse LLP, the
Underwriters, the Selling Stockholders and Cravath, Swaine & Moore in connection
with the preparation of the Registration Statement, and based on the foregoing
and without assuming responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or making any
independent check or verification thereof (and relying as to factual matters
upon the statements of officers and other representatives of the Company, the
Selling Stockholders and others), no facts have come to the attention of such
counsel which lead them to believe that (I) the Registration Statement, as of
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading (other than the information omitted
therefrom in reliance on Rule 430A), or (II) any of the Prospectuses as amended
or supplemented, as of its date and as of each Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in 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 Prospectuses.
(c) The Underwriters shall also have received
from Richard L. Krzyzanowski, Executive Vice
President, Secretary and General Counsel of the
Company, an opinion, dated the Closing Date, to the
effect that:
(i) Each of the Company and its material subsidiaries
listed on Schedule III hereto is a corporation duly organized,
validly existing and in good standing under the laws of its
<PAGE>
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 the Company 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 the Company and
its subsidiaries, taken as a whole.
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be made by the Company for the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except such as have
been obtained or made under the Act and such as may be
required under state securities and blue sky laws.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby will not result in a material breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, rule, regulation or order of any
governmental agency or body of any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any material agreement or instrument to
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the articles of incorporation or bylaws of the
Company or any such subsidiary; and to the best of such
counsel's knowledge, neither the Company nor any of its
material subsidiaries is in violation of its articles or
incorporation or bylaws, or in material default under any
material agreement, indenture or instrument.
(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 the Company 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 the Company 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.
<PAGE>
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 the Company 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 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 the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading (other than the information omitted therefrom in reliance on Rule
430A), or (II) any of the Prospectuses as amended or supplemented, as of its
date and as of each Closing Date, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in 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 Prospectuses.
(d) You shall have received an opinion of Sullivan & Cromwell,
special counsel for the Selling Stockholders, dated the Closing Date,
that:
(i) All regulatory consents, authorizations,
approvals and filings required to be made or obtained by the
Selling Stockholders under the Federal laws of the United
States and the laws of the State of New York for the sale and
delivery of the Shares by the Selling Stockholders to the
Underwriters have been obtained or made.
(ii) Insofar as New York law is concerned, upon
delivery of and payment for the Shares to be sold to the
Underwriters in the State of New York pursuant to this
Agreement, the Underwriters will have acquired the Shares free
of any adverse claim within the meaning of Section 8-302 of
the New York Uniform Commercial Code (the "Code").
(iii) The execution and delivery by the Selling
Stockholders of this Agreement and the sale by the Selling
Stockholders of the Shares in accordance with this Agreement
<PAGE>
will not violate any existing Federal law of the United States
or law of the State of New York.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the United States
of America and laws of the State of New York.
(e) You shall have received an opinion of Michel Renault,
General Counsel of CGIP, dated the Closing Date, that:
(i) This Agreement has been duly authorized, executed
and delivered on behalf of the Selling Stockholders.
(ii) The sale of the Shares to be sold by the Selling
Stockholders as contemplated by this Agreement and the
execution delivery and performance of this Agreement by the
Selling Stockholders will not conflict with or constitute a
breach of any of the terms or provisions of, or constitute a
default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or
instrument known to such counsel to which such Selling
Stockholder is a party or by which it may be bound (including
the restrictions contained in the Shareholders Agreement,
which have been fully waived or satisfied), nor will such
action result in any violation or breach of the provisions of
the statuts of such Selling Stockholder or any law or
administrative regulation or administrative or court decree or
order of any court or governmental authority or agency known
by such counsel to be applicable to such Selling Stockholder.
(iii) No consent, approval, authorization, order,
filing, registration or qualification of or with any court or
governmental authority or agency is required for the sale of
the Shares by the Selling Stockholders as contemplated by this
Agreement (except such counsel need express no opinion as to
any necessary qualification under the securities laws of any
foreign country).
(iv) The Selling Stockholders have full right, power
and authority to sell, assign, transfer and deliver, or to
cause to be sold, assigned, transferred and delivered, the
Shares to be sold by the Selling Stockholders to the
Underwriters.
(v) The sale of the Shares as contemplated by this
Agreement is not subject to any contractual restrictions on
transfer, except the restrictions on transfers contained in
the Shareholders Agreement, which have been fully waived or
satisfied.
<PAGE>
(vi) Upon delivery of the Shares to the Underwriters,
and payment therefor by the Underwriters pursuant to this
Agreement, good and valid title to the Shares, free and clear
of all liens, encumbrances, equities or claims has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may state that his
opinion is limited to matters governed by the laws of the Republic of France.
The foregoing opinion does not address compliance by the Underwriters with
foreign securities laws with respect to resales of the Shares in France.
(f) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, an opinion, dated the Closing
Date, with respect to such matters as the International Representatives
may reasonably request.
(g) The Underwriters shall have received from the President or
any Vice President and a principal financial or accounting officer of
the Company a certificate, dated the Closing Date, in which such
officers shall state that, to the best of their knowledge and after
reasonable investigation, (i) the Registration Statement as of the
Effective Time, and the Prospectuses as of the date of any filing
pursuant to Rule 424(b) and on the Closing Date, did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and since the Effective Time, no
event has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectuses; (ii) there
has not been, since the respective dates as of which information is
given in the Registration Statement and the Prospectuses, any change or
event that would be likely to have a Material Adverse Effect, whether
or not arising in the ordinary course of business; (iii) in the case of
representations and warranties in Section 2 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Company with
the same force and effect as though made on and as of the Closing Date
and the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(h) The Underwriters shall have received from the Selling
Stockholders a certificate, signed by the President or any Vice
President and a principal financial or accounting officer of CGIP,
dated the Closing Date, in which such officers shall state that, to the
best of their knowledge and after reasonable investigation, (i) the
Selling Stockholders' Information contained in the Registration
Statement as of the Effective Time, or in any Prospectus as of the date
of any filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
<PAGE>
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (ii) in the case of
representations and warranties in Section 3 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Selling
Stockholders with the same force and effect as though made on the
Closing Date and the Selling Stockholders have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(i) The Underwriters shall have received from Price Waterhouse
LLP, independent public accountants, two letters, the first dated the
date of this Agreement and the other dated the Closing Date, addressed
to the Board of Directors of the Company, the Underwriters and the
Selling Stockholders (with conformed copies for each of the
Underwriters), substantially in the form of Annex A hereto with such
variations as are reasonably acceptable to the International
Representatives.
(j) The Underwriters shall have received from Befec-Price
Waterhouse, independent public accountants, two letters, the first
dated the date of this Agreement and the other dated the Closing Date,
addressed to the Board of Directors of the Company, the Underwriters
and the Selling Stockholders (with conformed copies for each of the
Underwriters), substantially in the form of Annex B hereto with such
variations as are reasonably acceptable to the International
Representatives.
SECTION 8. Payment of Expenses. Other than the fees and
expenses of the Company's counsel and accountants, the Selling Stockholders will
pay all costs, expenses, fees, disbursements and taxes incident to the sale of
the Shares contemplated hereby and in the U.S. Underwriting Agreement, including
without limitation (i) the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), the
Prospectuses, each Preliminary Prospectus and all amendments and supplements to
any of them prior to or during the period specified in Section 6(b), (ii) the
printing, reproduction and distribution of this Agreement and the U.S.
Underwriting Agreement, and all other underwriting and selling group documents
by mail, telex or other means, (iii) the registration with the Commission of the
Shares, (iv) the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of the several states and the preparation,
printing and distribution of Preliminary and Supplemental Blue Sky Memoranda and
Legal Investment Survey (including the reasonable fees and disbursements of the
U.S. Underwriters' counsel relating to the foregoing), (v) filing fees incurred
in connection with the National Association of Securities Dealers, Inc.'s review
of the offering's underwriting terms and arrangements, (vi) the fees and
expenses of the Registrar and Transfer Agent for the Shares and its counsel and
(vii) the fees and expenses of the Selling Stockholders' counsel and
accountants.
<PAGE>
If the sale of the International Shares provided for herein is
not consummated because of the failure to satisfy any condition to the
obligations of the International Underwriters, because of any breach of any
representation, warranty or covenant of the Company or the Selling Stockholders
contained in this Agreement, because of any termination pursuant to Section 11
hereof or because of any refusal, failure or inability of the Company or the
Selling Stockholders to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any International
Underwriter, the Selling Stockholders shall reimburse the International
Underwriters for all of their reasonable out-of-pocket expenses incurred in
connection with marketing and preparing for the offering of the Shares,
including the reasonable fees and disbursements of counsel for the International
Underwriters.
SECTION 9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
the International Underwriters and the Selling Stockholders and each
person, if any, who controls any International Underwriter or any
Selling Stockholder within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (or actions in respect thereof)
(including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending
or preparing to defend or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action, as
such expenses are incurred), insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the International Prospectus or any
International Preliminary Prospectus, or are caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except (i) the Company shall not be liable to any International
Underwriter under the indemnity agreement in this paragraph (a) with
respect to any International Preliminary Prospectus to the extent that
such losses, claims, damages, liabilities or expenses result from the
fact that such International Underwriter sold Shares to a person as to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the International Prospectus or of
the International Prospectus as then amended or supplemented in any
case where such delivery is required by the Act if the loss, claim,
damage or liability of such International Underwriter results from an
untrue statement or omission of a material fact contained in the
International Preliminary Prospectus which was corrected in the
International Prospectus or in the International Prospectus as then
amended or supplemented if the Company had previously furnished copies
thereof to such International Underwriter and (ii) insofar as such
losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with (x) written
information furnished to the Company by or on behalf of the
International Underwriters specifically for use in the Registration
<PAGE>
Statement, the International Prospectus or any International
Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any International Underwriter consists of
(A) the last paragraph of text on the cover page of the International
Prospectus (and any International Preliminary Prospectus) concerning
the terms of the offering by the International Underwriters, (B) the
second and third paragraphs on page 3 of the International Prospectus
(and any International Preliminary Prospectus) concerning
over-allotment and stabilization by the U.S. Underwriters and
exemptions from Rules 10b-6, 10b-7 and 10b-8 under the Exchange Act and
(C) the text under the caption "Underwriting" in the International
Prospectus (and any International Preliminary Prospectus) concerning
the terms of the offering by the International Underwriters and the
delivery of Shares pursuant thereto (collectively, the "Underwriters'
Information") or (y) written information furnished to the Company by or
on behalf of the Selling Stockholders specifically for use in the
Registration Statement, the International Prospectus or any
International Preliminary Prospectus, it being understood and agreed
that the only such information furnished by any Selling Stockholder
consists of the information under the caption "Selling Shareholders" in
the International Prospectus (or any International Preliminary
Prospectus), other than in respect of the Company's outstanding
capitalization (collectively, the "Selling Stockholders' Information").
This indemnity agreement will be in addition to any liability which the
Company may otherwise have to the persons referred to above in this
Section 9(a). Notwithstanding anything to the contrary in this
Agreement, the Company shall not be liable to any Selling Stockholder
under the indemnity agreement in this paragraph (a) or for any breach
of any representation or warranty of the Company set forth in Section 2
with respect to the statements in the International Prospectus (or any
International Preliminary Prospectus) relating to the terms and
provisions of the Shareholders Agreement.
(b) The Selling Stockholders agree, jointly and severally, to
indemnify and hold harmless each of the International Underwriters and
each person, if any, who controls any International Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act and the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with investigating or
defending or preparing to defend or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action,
as such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the International Prospectus or any
International Preliminary Prospectus or are caused by any omission or
alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only in
each case with reference to the Selling Stockholders' Information;
<PAGE>
provided, however, that the Selling Stockholders shall not be liable to
any International Underwriter under the indemnity agreement in this
paragraph (b) with respect to any International Preliminary Prospectus
to the extent that such losses, claims, damages, liabilities or
expenses result solely from the fact that such International
Underwriter sold Shares to a person as to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of
the International Prospectus or of the International Prospectus as then
amended or supplemented in any case where such delivery is required by
the Act if the loss, claim, damage or liability of such International
Underwriter results from an untrue statement or omission of a material
fact contained in the International Preliminary Prospectus which was
corrected in the International Prospectus or in the International
Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such International Underwriter.
This indemnity agreement will be in addition to any liability which the
Selling Stockholders may otherwise have to the persons referred to
above in this Section 9(b). Notwithstanding anything to the contrary in
this Agreement, the Selling Stockholders shall not be liable to the
Company under the indemnity agreement in this paragraph (b) or for any
breach of any representation or warranty of the Selling Stockholders
set for in Section 3 with respect to the statements in the
International Prospectus (or any International Preliminary Prospectus)
relating to the terms and provisions of the Shareholders Agreement.
(c) Each International Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Selling
Stockholders, the directors of the Company, the officers of the Company
who sign the Registration Statement and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (or actions
in respect thereof) (including, without limiting the foregoing, the
reasonable legal and other expenses incurred in connection with
investigating or defending or preparing to defend or appearing as a
third party witness in connection with any such loss, claim, damage,
liability or action, as such expenses are incurred) insofar as such
losses, claims, damages, liabilities and expenses arise out of or are
based on any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the International
Prospectus or any International Preliminary Prospectus, or are caused
by any omission or 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. This indemnity agreement will be in addition to any
liability which the International Underwriters may otherwise have to
the persons referred to above in this Section 9(c).
(d) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the
<PAGE>
person against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing; however, the omission to so notify
the indemnifying party shall relieve the indemnifying party from
liability under the three preceding paragraphs only to the extent
prejudiced thereby. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may desire, to assume
the defense thereof through counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof, other
than reasonable costs of investigation (unless such indemnified party
reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to
those available to such indemnifying party in which event the
indemnified party shall be reimbursed by the indemnifying party for the
reasonable expenses incurred in connection with retaining separate
legal counsel). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any claim or
pending or threatened proceeding in respect of the indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
(e) If the indemnification provided for in this Section 9 is
insufficient or unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses in such proportion as is
appropriate to reflect the relative fault of the Company, the Selling
Stockholders and the International Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, the Selling
Stockholders and the International Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Selling Stockholders or by the International Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) The Company, each Selling Stockholder and each of the
International Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 9(e) were determined by
pro rata allocation (even if the International Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in
the immediately preceding paragraph shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(e), in no event shall any
International Underwriter be required to contribute any amount in
excess of the amount by which the total price at which the
International Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
International 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 mis-representation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The International Underwriters' obligations to
contribute pursuant to Section 9(e) are several in proportion to the
respective number of International Shares set forth opposite their
names in Schedule I hereto and not joint.
(g) The Company, the Selling Stockholders and the
International Underwriters agree that any indemnity provision contained
in Section 5.5 of the Shareholders Agreement or any other agreement
between the Company on the one hand and the Selling Stockholders on the
other shall be superseded for all purposes by this Section 9 in respect
of the offer and sale of the Shares.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company or the
Selling Stockholders submitted pursuant hereto, including indemnity and
contribution agreements, shall remain operative and in full force and effect,
regardless of any investigation, or any statement as to the results thereof,
made by or on behalf of any International Underwriter or any person controlling
any International Underwriter or by or on behalf of the Company, its officers or
directors or controlling persons, or by any Selling Stockholder or any person
controlling any Selling Stockholder, and shall survive acceptance of and payment
for the International Shares hereunder.
SECTION 11. Termination. This Agreement may be terminated for
any reason at any time prior to the delivery of and payment for the
International Shares on the Closing Date, by the International Underwriters upon
the giving of written notice by Lazard Capital Markets of such termination to
the Company and the Selling Stockholders, if prior to such time (i) there has
been, since the respective dates as of which information is given in the
Registration Statement and the International Prospectus, any Material Adverse
Effect, whether or not arising in the ordinary course of business, (ii) there
has occurred any outbreak or escalation of major hostilities or other national
or international calamity or crisis or material adverse change in existing
<PAGE>
national or international financial, political, economic or securities market
conditions, the effect of which is such as to make it, in the judgement of
Lazard Capital Markets, impracticable or inadvisable to market the Shares in the
manner contemplated in the Prospectuses or enforce contracts for the sale of the
Shares, or (iii) trading in the Common Stock of the Company has been suspended
by the Commission or a national securities exchange, or trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or a banking
moratorium has been declared by either Federal or New York authorities. In the
event of any such termination, the provisions of Section 8, the indemnity
agreement and contribution provisions set forth in Section 9, and the provisions
of Section 15 shall remain in effect and, if the International Underwriters
shall have purchased any International Shares on the Closing Date prior to such
termination, then all representations and warranties of the Company and the
Selling Stockholders set forth in or made pursuant to this Agreement and all
obligations of the Company pursuant to Section 6 hereof shall survive such
termination.
SECTION 12. Default of International Underwriters. If, on the Closing Date,
any one or more of the International Underwriters shall fail or refuse to
purchase International Shares that it or they have agreed to purchase hereunder
on such date, and the aggregate number of International Shares which such
defaulting International Underwriter or International Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the International Shares to be purchased on such date by all International
Underwriters, the other International Underwriters shall be obligated severally
in the proportions that the number of International Shares set forth opposite
their respective names in Schedule I bear to the aggregate number of
International Shares set forth opposite the names of all such non-defaulting
International Underwriters, or in such other proportions as the International
Representatives may specify, to purchase the International Shares which such
defaulting International Underwriter or International Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of International Shares that any International Underwriter has agreed to
purchase pursuant to Section 4 be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such number of International Shares without the
written consent of such International Underwriter. If, on the Closing Date, any
International Underwriter or International Underwriters shall fail or refuse to
purchase International Shares and the aggregate number of International Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of International Shares to be purchased on such date, and
arrangements satisfactory to the International Representatives, the Company and
the Selling Stockholders for the purchase of such International Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any nondefaulting International Underwriter or the
Company or the Selling Stockholders, except for the expenses to be paid or
reimbursed by the Company pursuant to Section 8 and the respective obligations
of the Company, the Selling Stockholders and the International Underwriters
pursuant to Section 9; provided, however, that if the International Underwriters
shall have purchased any International Shares on the Closing Date prior to such
<PAGE>
termination, then all representations and warranties of the Company and the
Selling Stockholders set forth in or made pursuant to this Agreement and all
obligations of the Company pursuant to Section 6 hereof shall survive such
termination. In any such case either the International Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectuses or in any other documents or
arrangements may be effected. As used in this Agreement, the term "International
Underwriter" includes any person substituted for an International Underwriter
under this Section. Any action taken under this paragraph shall not relieve any
defaulting International Underwriter from liability in respect of any default of
such International Underwriter under this Agreement.
SECTION 13. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
International Underwriters shall be directed to the International
Representatives c/o Lazard Capital Markets, 21 Moorfields, London EC2P 2HT
England, Attention: Syndicate Department; notices to the Company shall be
directed to it at Crown Cork & Seal Company, Inc., 9300 Ashton Road,
Philadelphia, PA 19136, facsimile transmission no. (215) 698-7050, Attention:
Alan W. Rutherford, Executive Vice President and Chief Financial Officer, and
Richard L. Krzyzanowski, Executive Vice President, Secretary and General
Counsel; and notices to the Selling Stockholders shall be directed to Compagnie
Generale d'Industrie et de Participations, 89 rue Taitbout, 75009 Paris, France,
Attention: Michel Renault, with a copy to Sullivan & Cromwell, 125 Broad Street,
New York, NY 10004, facsimile transmission no. (212) 558-3588, Attention: Allan
M. Chapin.
SECTION 14. Parties. This Agreement shall inure to the benefit
of and be binding upon the Company, its directors and officers who signed the
Registration Statement, the International Underwriters, the Selling
Stockholders, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of International Shares from any
International Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. Governing Law. This Agreement shall
be governed by, and construed in accordance with, the law
of the State of New York.
<PAGE>
SECTION 16. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign this Agreement and return to us seven counterparts
hereof.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.,
By /s/ Craig R.L. Calle
Name: Craig R.L. Calle
Title: Senior Vice President-
Finance and Treasurer
COMPAGNIE GENERALE
D'INDUSTRIE ET DE PARTICIPATIONS,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Chairman and CEO
SOFISERVICE,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Attorney-in-Fact
<PAGE>
Confirmed and Accepted, as of the date first above written:
LAZARD CAPITAL MARKETS
CS FIRST BOSTON LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
By: LAZARD CAPITAL MARKETS
By: /s/ James L. Kempner
Name: James L. Kempner
Title: Managing Director
Acting severally on behalf of themselves and as International Representatives of
the several International Underwriters named in Schedule I hereto.
<PAGE>
Schedule I
Number of
International
Shares to be
International Underwriters Purchased
Lazard Capital Markets...................................... 505,670
CS First Boston Limited..................................... 505,665
Salomon Brothers International Limited..................... 505,665
ABN AMRO Rothschild......................................... 37,000
Barclays De Zoete Wedd Limited ............................. 37,000
Cazenove & Co............................................... 37,000
Credit Lyonnais Securities.................................. 37,000
Creditanstalt Investment Bank AG............................ 37,000
Dresdner Bank AG............................................ 37,000
MedioBanca - Banca di Credito Finanziario S.p.A............. 37,000
Merrill Lynch International................................. 37,000
Societe Generale............................................ 37,000
------------
Total.............................................. 1,850,000
<PAGE>
Schedule II
Number of International
Selling Stockholder Shares to be Sold
Compagnie Generale 1,448,614
d'Industrie et
de Participations
Sofiservice 401,386
Total 1,850,000
<PAGE>
Schedule III
Material Subsidiaries
CONSTAR International Inc.
Crown Beverage Packaging, Inc.
Exhibit C
3,000,000 Shares
Crown Cork & Seal Company, Inc.
CONVERTIBLE PREFERRED STOCK
($41.8875 PAR VALUE)
UNDERWRITING AGREEMENT
October 24, 1996
Lazard Freres & Co. LLC
CS First Boston Corporation
Salomon Brothers Inc
c/o Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Dear Sirs:
SECTION 1. Introductory. Compagnie Generale d'Industrie et de
Participations, a societe anonyme organized under the laws of the Republic of
France ("CGIP"), and Sofiservice, a societe anonyme organized under the laws of
the Republic of France and a wholly owned subsidiary of CGIP ("Sofiservice" and,
together with CGIP, the "Selling Stockholders"), propose to sell to Lazard
Freres & Co. LLC, CS First Boston Corporation and Salomon Brothers Inc (the
"Underwriters") an aggregate of 3,000,000 shares (the "Firm Shares") of
Convertible Preferred Stock, par value $41.8875 per share (the "Convertible
Preferred Stock"), of Crown Cork & Seal Company, Inc. (the "Company"), each
Selling Stockholder selling the amount set forth opposite such Selling
Stockholder's name in Schedule II hereto. The Selling Stockholders also propose
to sell to the Underwriters, upon the terms and conditions set forth in Section
4 hereof, up to an additional 450,000 shares of Convertible Preferred Stock (the
"Additional Shares"), each Selling Stockholder selling the amount set forth
opposite such Selling Stockholder's name in Schedule II hereto. The Firm Shares
and the Additional Shares are hereinafter sometimes collectively referred to as
the "Shares".
It is understood that the Company and the Selling Stockholders
are concurrently entering into underwriting agreements dated the date hereof
(the "U.S. Common Stock Underwriting Agreement" and the "International Common
<PAGE>
Stock Underwriting Agreement") in which the Selling Stockholders propose to sell
to the several Underwriters named therein (the "U.S. Common Stock Underwriters"
and the "International Common Stock Underwriters") an aggregate of 9,250,000
shares (the "Common Firm Shares") of the Company's Common Stock, par value $5.00
per share (the "Common Stock"). In addition, CGIP has agreed to sell to the U.S.
Common Stock Underwriters, upon the terms and conditions set forth in the U.S.
Common Stock Underwriting Agreement, up to an additional 1,387,500 shares of
Common Stock (the "Common Additional Shares" and, collectively with the Common
Firm Shares, the "Common Shares"). The respective closings under this Agreement,
the U.S. Common Stock Underwriting Agreement and the International Common Stock
Underwriting Agreement are not conditional on one another.
The Company and the Selling Stockholders hereby agree with the
Underwriters as follows (it being understood and agreed that the obligations set
forth herein are several in nature, unless expressly stated to the contrary):
SECTION 2. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to, and agrees with, (i) the
several Underwriters and (ii) in the case of clauses (a), (b), (c), (j) and (n)
and the second sentence of clause (g) below only, the Selling Stockholders (it
being understood and agreed that such representations and warranties to the
Selling Stockholders are being made solely in connection with the sale of the
Shares under this Agreement and subject to the last sentence of Section 9(a)),
that:
(a) The Company meets the registrant requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on Form S-3 (File No. 333-12787), including a
form of prospectus relating to the Shares, has been filed by the
Company pursuant to the Act with the Securities and Exchange Commission
(the "Commission"). The Company may have filed one or more amendments
thereto, including the related Preliminary Prospectus (as defined
below), each of which (other than documents incorporated by reference
therein) has previously been furnished to you. The Company will file
with the Commission either (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement (including the form of final prospectus relating to the
Shares) or (ii) after effectiveness of such registration statement, a
final prospectus relating to the Shares in accordance with Rules 430A
and 424(b)(1) or (4) under the Act. In the case of clause (ii), the
Company has included or shall include in such registration statement,
as amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from such registration
statement when it becomes effective pursuant to Rule 430A ("Rule 430A
Information")) required by the Act and the rules and regulations
thereunder (the "Rules and Regulations") to be included in the final
prospectus with respect to the Shares and the offering thereof. As
filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all
other such required information, with respect to the Shares and the
offering thereof, and, except to the extent you shall agree in writing
to a modification (which shall not be unreasonably withheld or
<PAGE>
delayed), shall be in all substantive respects in the form furnished to
you prior to the execution of this Agreement or, to the extent not in
such form, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised the Underwriters, prior to the
execution of this Agreement, will be included or made therein. For
purposes of this Agreement, "Effective Time" means the time as of which
such registration statement or the most recent post-effective amendment
thereto, if any, was or is declared effective by the Commission and
each date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Effective Date"
means the date of the Effective Time. The registration statement
contains a prospectus to be used in connection with the offering and
sale of the Shares. Such registration statement, as amended at the
Effective Time, including incorporated documents, exhibits and
financial statements, and including all Rule 430A Information, if any,
and, any post-effective amendment thereto that becomes effective prior
to the Closing Date (as defined below) is hereinafter referred to as
the "Registration Statement", and the prospectus relating to the Shares
in the form first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or, if no
such filing is required, as included in the Registration Statement is
hereinafter referred to as the "Prospectus". Any preliminary prospecus
relating to the Shares included in such Registration Statement or filed
pursuant to Rule 424(a) under the Act is hereinafter referred to as a
"Preliminary Prospectus". Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the Effective
Time of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
references to information being "included", "contained" or "set forth
in" any such document (or similar expressions) shall be similarly
construed; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Time of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(b) At the Effective Time, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 4), the Prospectus (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act
and the Rules and Regulations; at the Effective Time, the Registration
Statement did not or will not include any untrue statement of a
material fact or omit to state any material fact
<PAGE>
required to be stated therein or necessary in order to make the
statements therein not misleading; and, at the Effective Time, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (and any supplements thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with the
Underwriters' Information or the Selling Stockholders' Information (as
defined in Section 9(a)).
(c) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose shall have been instituted or threatened
by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements
of the Act and the Rules and Regulations, and did not contain any
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; except that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with the
Underwriters' Information or the Selling Stockholders' Information.
(d) The historical consolidated financial statements included
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations, the statements of their cash flows and the changes in their
financial position for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved
(except as described in the notes to such financial statements); and
the supporting schedules, if any, included in the Registration
Statement present fairly in all material respects the information
required to be stated therein. The pro forma financial statements
included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) have been prepared on a basis
consistent with such historical financial statements (except as
described in such pro forma financial statements), include all material
adjustments to the historical financial data required to reflect the
transactions to which pro forma effect is given, give effect to
assumptions made on a reasonable basis, and present fairly in all
material respects on a pro forma basis the estimated consolidated
financial position and results of operations of the Company and its
consolidated subsidiaries assuming that such transactions had occurred
on the date specified therein.
(e) There has not been sustained since the date of the latest
audited financial statements included in the Prospectus any material
adverse change in the financial condition, results of operations or
business of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"), except as set forth in the Prospectus.
<PAGE>
(f) The Company and each of its subsidiaries have been duly
incorporated and are validly existing in good standing under the laws
of their respective jurisdictions of organization with power and
authority to own, lease and operate their properties and conduct their
businesses as described in the Registration Statement and the
Prospectus; and each of them is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which it owns or leases properties or in which the conduct of its
business requires such qualification, except to the extent that any
such failure to be so qualified or be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect.
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all shares of capital stock of the Company
outstanding, including the Shares, have been duly authorized, are
validly issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the
Prospectus. The sale of the Shares is not subject to pre-emptive or
other similar rights or restrictions on transfer created by the Company
under the Company's articles of incorporation or bylaws, under
applicable law or under any agreement to which the Company is a party
or of which the Company has actual knowledge (other than those imposed
by the Act, the Rules and Regulations, foreign securities laws or state
securities or Blue Sky laws and other than restrictions on transfers
contained in that certain Shareholders Agreement, dated February 22,
1996, between the Company and CGIP (the "Shareholders Agreement") which
have been fully waived or satisfied); and the Shares are duly listed
and admitted for trading on the New York Stock Exchange (the "NYSE").
(h) All of the issued and outstanding capital stock of each
material subsidiary of the Company listed on Schedule III hereto has
been duly authorized and validly issued and is fully paid and
non-assessable, and, except as set forth in the Prospectus, all the
issued and outstanding capital stock of each such material subsidiary
is owned, directly or through subsidiaries, by the Company, free and
clear of any pledge, lien, encumbrance, adverse claim or equity
(collectively, a "Lien"), except for any such Liens that would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) Neither the Company nor any of its subsidiaries is in
violation of its or any of their charters or by-laws or other
organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which it or any of them or their properties may be bound,
except any violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration,
filing or qualification by or on behalf of the Company or any of its
<PAGE>
subsidiaries of or with any court or governmental authority or agency
or of the NYSE is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except
such as may be required under the Act, the Rules and Regulations or
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; the execution and
delivery of this Agreement, and the consummation of the transactions
contemplated herein will not (i) conflict with or constitute a breach
of any of the terms or provisions of, or default under, or result in
the creation or imposition of any Lien upon any property or assets of
the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject that is material to the Company and its
subsidiaries taken as a whole, (ii) result in any violation or breach
of the provisions of the charter or by-laws or other organizational
documents of the Company or any of its subsidiaries or (iii) result in
any violation of any law, administrative regulation or administrative
or court decree or order applicable to the Company, any of its material
subsidiaries or their respective property.
(k) The Company and its subsidiaries are in compliance with
all laws and regulations applicable to them and their respective
properties and possess all certificates, authorities or permits issued
by, and have made all filings with, the appropriate state, local,
Federal or foreign regulatory agencies or bodies necessary or desirable
to conduct the business now operated by them, except where
noncompliance with such laws or regulations or the failure to possess
or make the same would not, individually or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation, termination or modification of any such certificate,
authority, permit or filing, other than any such revocation,
termination or modification that would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Except as described in the Prospectus, there are no
actions, suits or proceedings before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, contemplated or threatened against the Company or any
of its subsidiaries, or to which any of their respective properties is
subject, which, (i) if adversely determined, would, individually or in
the aggregate, result in any Material Adverse Effect or (ii) questions
the validity of this Agreement or any action taken or required to be
taken pursuant hereto.
(m) Each of the Company and its subsidiaries has good and
marketable title to all real and personal property owned by it, in each
case free and clear of any Lien, except (i) such as are referred to in
the Prospectus or (ii) such as would not, individually or in the
aggregate, have a Material Adverse Effect; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as would not, individually or in the aggregate, have a
Material Adverse Effect.
<PAGE>
(n) This Agreement has been duly authorized,
executed and delivered by the Company.
(o) Other than the Shareholders Agreement, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities under the Registration Statement.
(p) Except as set forth in the Prospectus under
the caption "Underwriting", neither the Company nor,
to the Company's knowledge, any of its officers or
directors or any of their respective affiliates is a
member of, or is associated or affiliated with a
member of, the National Association of Securities
Dealers, Inc. ("NASD").
SECTION 3. Representations, Warranties and Agreements of the
Selling Stockholders. Each Selling Stockholder, jointly and severally,
represents and warrants to, and agrees with, (i) the several Underwriters and
(ii) the Company (it being understood and agreed that such representations and
warranties to the Company are being made solely in connection with the sale of
the Shares under this Agreement and subject to the last sentence of Section
9(b)), that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) Such Selling Stockholder has the legal right and power to
execute and deliver this Agreement and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder in the manner
provided in this Agreement, and no such action will result in any
violation or breach of the provisions of the charter or by-laws or
other organizational documents of such Selling Stockholder or any
agreement or other instrument binding upon such Selling Stockholder
(including the restrictions on transfer contained in the Shareholders
Agreement, which have been fully waived or satisfied) or any law,
administrative regulation or administrative or court decree or order
applicable to such Selling Stockholder; and no consent, approval,
authorization, order, registration, filing or qualification of or with
any court or governmental authority or agency or of the NYSE is
required for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Shares by such Selling
Stockholder, except such as may be required under the Act, the Rules
and Regulations or state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters.
<PAGE>
(c) Such Selling Stockholder has, and will deliver to the
Underwriters upon payment therefor good and marketable title to the
Shares to be sold by such Selling Stockholder, free and clear of any
Lien.
(d) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(e) At the Effective Time, the Selling Stockholders'
Information contained in the Registration Statement did not or will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements in the Selling Stockholders' Information not
misleading; and, at the Effective Time, the Selling Stockholders'
Information contained in the Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Selling Stockholders'
Information contained in the Prospectus (and any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements in the
Selling Stockholders' Information, in the light of the circumstances
under which they were made, not misleading.
(f) There are no contracts, agreements or understandings
between the Selling Stockholders and any person that would give rise to
a valid claim against the Selling Stockholders or any Underwriter for a
brokerage commission, finder's fee or other like payment.
SECTION 4. Purchase, Sale and Delivery of Shares. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from such Selling
Stockholder, at a purchase price of $43.033 per Share (the "purchase price per
Share"), the respective number of Firm Shares (subject to adjustment by Lazard
Freres & Co. LLC to eliminate fractions) that bear the same proportion to the
number of Firm Shares to be sold by such Selling Stockholder as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
bears to the total number of Firm Shares.
CGIP hereby agrees to sell to the Underwriters and, on the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from CGIP, pursuant to an
option to be exercised in the 30-day period commencing on the date of this
Agreement, up to 450,000 Additional Shares at the purchase price per Share.
Additional Shares may be purchased solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
<PAGE>
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase from CGIP that proportion of the total number of
Additional Shares (subject to adjustment by Lazard Freres & Co. LLC to eliminate
fractions) to be purchased from CGIP as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
Each Selling Stockholder will deliver the Firm Shares to the
Underwriters, against payment of the purchase price therefor by wire transfer of
same day funds to an account specified in writing by such Selling Stockholder.
Payment for the Firm Shares shall be made at the offices of Cravath, Swaine &
Moore at 10:00 A.M., New York Time, on October 30, 1996 or at such other place
or time not later than seven full business days thereafter as the Underwriters
and the Selling Stockholders determine (the "Initial Closing Date").
CGIP will deliver the Additional Shares to the Underwriters,
against payment of the purchase price therefor by wire transfer of same day
funds to an account specified in writing by CGIP, at the offices of Cravath,
Swaine & Moore on such date and at such time (the "Option Closing Date"), as
shall be specified in the notice from Lazard Freres & Co. LLC to CGIP exercising
the option to purchase the Additional Shares. The Option Closing Date may be the
same as the Initial Closing Date but shall in no event be earlier than the
Initial Closing Date nor earlier than two nor later than ten business days after
the giving of the notice hereinafter referred to. Such notice may be given, by
letter or by telecopy or other facsimile transmission or by telephone (if
subsequently confirmed in writing), to CGIP at any time within 30 days after the
date of this Agreement. The Option Closing Date may be varied by agreement
between the Underwriters and CGIP. The Initial Closing Date and the Option
Closing Date are herein collectively referred to as the "Closing Date."
The certificates for all the Firm Shares and the Additional
Shares so to be delivered will be in such denominations and registered in such
names as the Underwriters request two full business days prior to the Initial
Closing Date or the Option Closing Date, as the case may be, and will be made
available at the offices of Lazard Freres & Co. LLC, New York, New York or, upon
your request, through the facilities of The Depository Trust Company, for
checking and packaging at least one full business day prior to the Initial
Closing Date or the Option Closing Date, as the case may be.
Each Selling Stockholder will not, without the prior written
consent of the Underwriters, offer, sell, pledge or otherwise dispose of any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock or any rights to purchase or
acquire such capital stock, for a period of one year after the date of this
Agreement; provided, however, that the foregoing restriction shall not apply to
(i) the sale of the Shares to be sold hereunder, (ii) the sale of the Common
Shares to be sold under the U.S. Common Stock Underwriting Agreement and the
International Common Stock Underwriting Agreement, (iii) any conversion of
shares of Preferred Stock into shares of Common Stock pursuant to the terms of
the Preferred Stock and (iv) any disposition of any shares of Common Stock or
Preferred Stock pursuant to a bona fide pledge or grant of a security interest
<PAGE>
to a major brokerage firm or financial institution to secure bona fide
indebtedness, or the sale of such shares upon foreclosure on such pledge,
provided that each purchaser of such shares upon foreclosure agrees to be bound
by the provisions of this paragraph.
SECTION 5. Offering by Underwriters. After the Registration
Statement becomes effective, the several Underwriters will offer the Shares for
sale to the public on the terms and conditions as set forth in the Prospectus.
SECTION 6. Covenants of the Company. The Company covenants and
agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Prospectus with
the Commission pursuant to and in accordance with subparagraph (1) (or,
if applicable, and with the Underwriters' consent, subparagraph (4)) of
Rule 424(b) within the time period prescribed by such rule. The Company
will advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement as filed, or the Prospectus, and
will not effect such amendment or supplement or filing without the
Underwriters' consent (which shall not be unreasonably withheld or
delayed). The Company will also advise the Underwriters promptly after
the Company receives notice of the effectiveness of the Registration
Statement (if the Effective Time is subsequent to the execution and
delivery of this Agreement), of the filing and effectiveness of any
amendment or supplement to the Registration Statement or the
Prospectus, and of the issuance by the Commission of any stop order in
respect of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or any prospectus
relating to the Shares or the initiation of proceedings for any such
purpose, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or of any request by the Commission
to amend or supplement the Registration Statement or the Prospectus or
for additional information and will use its best efforts to prevent the
issuance of any such stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or any prospectus
relating to the Shares or suspending any such qualification and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares
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 a 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 or supplement the Prospectus or the
Registration Statement to comply with the Act, the Rules and
Regulations or any other law, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 6, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
<PAGE>
compliance and will notify the Underwriters and, upon their request,
prepare and furnish without charge to each Underwriter, each Selling
Stockholder (except as provided below) and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably
request, of the amended Prospectus or any supplement to the Prospectus
complying with Section 10(a) of the Act which will correct such
statement or omission or effect such compliance, it being understood
and agreed that the Selling Stockholders will pay all costs and
expenses incident to the preparation, printing, filing and distribution
of any such amendment or supplement.
(c) The Company will make generally available to the Company's
security holders as soon as practicable, but in any event not later
than 18 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement that
satisfies the provisions of Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(d) The Company will deliver to each of the Underwriters as
many conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith and documents incorporated therein by reference) and copies
of the Preliminary Prospectus and the Prospectus as the Underwriters
may reasonably request.
(e) The Company will take such action as the Underwriters may
reasonably request, in cooperation with the Underwriters to qualify the
Shares for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the
Underwriters may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Shares; provided, however, that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation
in any jurisdiction in which it shall not then be qualified, or to
execute a general consent to service of process in any jurisdiction in
which such a consent has not been previously filed, or subject itself
to taxation in any jurisdiction wherein it would not otherwise be
subject to tax but for the requirements of this paragraph. The Company
will file such statements and reports as may be required by the laws of
each jurisdiction in which the Shares have been qualified as above
provided.
(f) The Company agrees that neither it nor any of its
directors or the principal executive officers set forth in Item 10 of
the Company's Annual Report on Form 10-K for the year ended December
31, 1995 will, without the prior written consent of the Underwriters,
offer, sell, or otherwise dispose of, any shares of capital stock of
the Company or any securities convertible into or exercisable or
exchangeable for such capital stock or any rights to purchase or
acquire such capital stock, for a period of 90 days after the date of
this Agreement; provided, however, that the foregoing restriction shall
not apply to any issuances or sales (a) in connection with stock
option, savings, benefit or compensation plans or dividend reinvestment
plans in existence on the date of this Agreement or the conversion or
<PAGE>
exchange of convertible or exchangeable securities of the Company, (b)
in connection with a merger or other combination with, or exchange
offer for shares of, or acquisition of assets of, another entity, (c)
required in the Company's judgment to prevent termination of the
Standstill Period (as defined in the Shareholders Agreement) or (d) by
such directors and officers of up to 300,000 shares of capital stock in
the aggregate; provided, further, that (i) in the case of clauses (b),
(c) and (d) above, the Company shall give the Underwriters at least 2
business days' prior written notice of such issuance or sale and (ii)
in the case of clauses (b) and (c) above, the recipients of any such
securities shall agree to be bound by the provisions of this paragraph.
SECTION 7. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the Firm
Shares on the Initial Closing Date will be subject (i) to the provisions of
Section 11 herein, (ii) in the case of representations and warranties qualified
as to materiality, to the accuracy of such representations and warranties in all
respects, and in the case of representations and warranties not so qualified, to
the accuracy of such representations and warranties in all material respects, in
each case on the part of the Company and the Selling Stockholders herein as of
the date hereof and as of the Initial Closing Date with the same force and
effect as if made as of that date, (iii) to the accuracy of the statements of
Company officers and Selling Stockholder officers made in any certificates
furnished pursuant to the provisions hereof, (iv) to the performance by the
Company and the Selling Stockholders of their respective obligations hereunder
and (v) to the following additional conditions precedent:
(a) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than (i) 6:00 p.m. New York City time on the date of
determination of the offering price, if such determination occurred at
or prior to 3:00 p.m. New York City time on such date or (ii) 12:00
noon New York City time on the business day following the day on which
the offering price was determined if such determination occurred after
3:00 p.m. New York City time on such date. If the Effective Time is
prior to the execution and delivery of this Agreement, the Company
shall have filed the Prospectus with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 6(a) hereof.
In either case, prior to the Initial Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission; and the Company shall have
complied with all requests for additional information on the part of
the Commission to the Underwriters' reasonable satisfaction.
(b) The Underwriters shall have received an opinion of Dechert
Price & Rhoads, counsel for the Company, dated the Initial Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; and the Company has the
corporate power and authority necessary to own or hold its
<PAGE>
properties and to conduct the business in which it is engaged
as described in the Prospectus.
(ii) This Agreement has been duly
authorized, executed and delivered by the Company.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby do not (a) conflict with or result in a
violation of any of the provisions of the articles of
incorporation or bylaws of the Company, (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 the Company or by which any
property or asset of the Company or any of its 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 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 any of its subsidiaries is a party or by which any
of them or any of its properties or assets is or may be bound.
(iv) 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 any of its properties is required to be
obtained by the Company in connection with the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except filings and
other actions required under the Act and the Rules and
Regulations and state securities and blue sky laws, as to
which such counsel need not express any opinion.
(v) The Company has an authorized capitalization as
set forth in the Prospectus; the Shares have been duly and
validly authorized and have been duly and validly issued, and
are fully paid and nonassessable; the Shares conform
in all material respects to the description
thereof in the Prospectus.
(vi) The Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, and, to the knowledge of such counsel, no stop
order has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
<PAGE>
(vii) The statements set forth or referred to in the
Prospectus under the headings "Description of Capital
Stock--General", "Description of Capital Stock--Common Stock",
"Description of Capital Stock--Preferred Stock" and "Certain
United States Federal Tax Considerations for Non-U.S. Holders
of Capital Stock" and in the Registration Statement under Item
15, insofar as such statements constitute a summary of the
legal matters or documents referred to therein fairly present
the information called for with respect to such legal matters
or documents.
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, 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 Initial Closing
Date to the effect that (i) the Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company prior to the
Initial 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, Price Waterhouse
LLP, the Underwriters, the Selling Stockholders and Cravath, Swaine & Moore in
connection with the preparation of the Registration Statement, and based on the
foregoing and without assuming responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or making any
independent check or verification thereof (and relying as to factual matters
upon the statements of officers and other representatives of the Company, the
Selling Stockholders and others), no facts have come to the attention of such
counsel which lead them to believe that (I) the Registration Statement, as of
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading (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 each Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in 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.
(c) The Underwriters shall also have received from Richard L.
Krzyzanowski, Executive Vice President, Secretary and General Counsel of the
Company, an opinion, dated the Initial Closing Date, to the effect that:
<PAGE>
(i) Each of the Company and its material subsidiaries
listed on Schedule III 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 the Company 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 the Company and
its subsidiaries, taken as a whole.
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be made by the Company for the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except such as have
been obtained or made under the Act and such as may be
required under state securities and blue sky laws.
(iii) The execution, delivery and performance of this
Agreement by the Company and the sale of the Shares
contemplated hereby will not result in a material breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, rule, regulation or order of any
governmental agency or body of any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any material agreement or instrument to
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the articles of incorporation or bylaws of the
Company or any such subsidiary; and to the best of such
counsel's knowledge, neither the Company nor any of its
material subsidiaries is in violation of its articles or
incorporation or bylaws, or in material default under any
material agreement, indenture or instrument.
(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 the Company 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 the Company 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.
<PAGE>
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 Initial Closing
Date to the effect that (a) each document filed by the Company 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 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 the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading (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 each Closing Date, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in 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.
(d) You shall have received an opinion of Sullivan & Cromwell,
special counsel for the Selling Stockholders, dated the Initial Closing
Date, that:
(i) All regulatory consents, authorizations,
approvals and filings required to be made or obtained by the
Selling Stockholders under the Federal laws of the United
States and the laws of the State of New York for the sale and
delivery of the Shares by the Selling Stockholders to the
Underwriters have been obtained or made.
(ii) Insofar as New York law is concerned, upon
delivery of and payment for the Shares to be sold to the
<PAGE>
Underwriters in the State of New York pursuant to this
Agreement, the Underwriters will have acquired the Shares free
of any adverse claim within the meaning of Section 8-302 of
the New York Uniform Commercial Code (the "Code").
(iii) The execution and delivery by the Selling
Stockholders of this Agreement and the sale by the Selling
Stockholders of the Shares in accordance with this Agreement
will not violate any existing Federal law of the United States
or law of the State of New York.
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 State of New York.
(e) You shall have received an opinion of Michel Renault,
General Counsel of CGIP, dated the Initial Closing Date, that:
(i) This Agreement has been duly authorized, executed
and delivered on behalf of the Selling Stockholders.
(ii) The sale of the Shares to be sold by the Selling
Stockholders as contemplated by this Agreement and the
execution delivery and performance of this Agreement by the
Selling Stockholders will not conflict with or constitute a
breach of any of the terms or provisions of, or constitute a
default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or
instrument known to such counsel to which such Selling
Stockholder is a party or by which it may be bound (including
the restrictions contained in the Shareholders Agreement,
which have been fully waived or satisfied), nor will such
action result in any violation or breach of the provisions of
the statuts of such Selling Stockholder or any law or
administrative regulation or administrative or court decree or
order of any court or governmental authority or agency known
by such counsel to be applicable to such Selling Stockholder.
(iii) No consent, approval, authorization, order,
filing, registration or qualification of or with any court or
governmental authority or agency is required for the sale of
the Shares by the Selling Stockholders as contemplated by this
Agreement (except such counsel need express no opinion as to
any necessary qualification under the securities laws of any
foreign country).
(iv) The Selling Stockholders have full right, power
and authority to sell, assign, transfer and deliver, or to
cause to be sold, assigned, transferred and delivered, the
Shares to be sold by the Selling Stockholders to the
Underwriters.
(v) The sale of the Shares as contemplated by this
Agreement is not subject to any contractual restrictions on
transfer, except the restrictions on transfers contained in
the Shareholders Agreement, which have been fully waived or
satisfied.
(vi) Upon delivery of the Shares to the Underwriters,
and payment therefor by the Underwriters pursuant to this
Agreement, good and valid title to the Shares, free and clear
<PAGE>
of all liens, encumbrances, equities or claims has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may state that his
opinion is limited to matters governed by the laws of the Republic of France.
The foregoing opinion does not address compliance by the Underwriters with
foreign securities laws with respect to resales of the Shares in France.
(f) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, an opinion, dated the Initial
Closing Date, with respect to such matters as the Underwriters may
reasonably request.
(g) The Underwriters shall have received from the President or
any Vice President and a principal financial or accounting officer of
the Company a certificate, dated the Initial Closing Date, in which
such officers shall state that, to the best of their knowledge and
after reasonable investigation, (i) the Registration Statement as of
the Effective Time, and the Prospectus as of the date of any filing
pursuant to Rule 424(b) and on the Closing Date, did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and since the Effective Time, no
event has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus; (ii) there
has not been, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any change or
event that would be likely to have a Material Adverse Effect, whether
or not arising in the ordinary course of business; (iii) in the case of
representations and warranties in Section 2 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Company with
the same force and effect as though made on and as of the Initial
Closing Date and the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Initial Closing Date; and (iv) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(h) The Underwriters shall have received from the Selling
Stockholders a certificate, signed by the President or any Vice
President and a principal financial or accounting officer of CGIP,
dated the Closing Date, in which such officers shall state that, to the
best of their knowledge and after reasonable investigation, (i) the
Selling Stockholders' Information contained in the Registration
Statement as of the Effective Time, or in any Prospectus as of the date
of any filing pursuant to Rule 424(b) and on the Closing Date, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (ii) in the case of
<PAGE>
representations and warranties in Section 3 qualified as to
materiality, such representations and warranties are true and correct
in all respects, and in the case of representations and warranties not
so qualified, such representations and warranties are true and correct
in all material respects, in each case on the part of the Selling
Stockholders with the same force and effect as though made on the
Initial Closing Date and the Selling Stockholders have complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Initial Closing Date
(i) The Underwriters shall have received from Price Waterhouse
LLP, independent public accountants, two letters, the first dated the
date of this Agreement and the other dated the Initial Closing Date,
addressed to the Board of Directors of the Company, the Underwriters
and the Selling Stockholders (with conformed copies for each of the
Underwriters), substantially in the form of Annex A hereto with such
variations as are reasonably acceptable to the Underwriters.
(j) The Underwriters shall have received from Befec-Price
Waterhouse, independent public accountants, two letters, the first
dated the date of this Agreement and the other dated the Initial
Closing Date, addressed to the Board of Directors of the Company, the
Underwriters and the Selling Stockholders (with conformed copies for
each of the Underwriters), substantially in the form of Annex B hereto
with such variations as are reasonably acceptable to the Underwriters.
The several obligations of the Underwriters to purchase the
Additional Shares hereunder are subject to (i) the accuracy (A) in all material
respects of the representations and warranties of the Company and the Selling
Stockholders contained herein that are qualified as to materiality and (B) in
all respects of such representations and warranties that are not so qualified,
in each case as though made on and as of the Option Closing Date, (ii) the
performance by the Company and the Selling Stockholders of their respective
obligations hereunder, (iii) satisfaction on and as of the Option Closing Date
of the conditions set forth in subsections (a) to (j) of this Section 7,
inclusive (and, for purposes thereof, each reference therein to the Initial
Closing Date shall be deemed to refer to the Option Closing Date), and (iv) the
absence of circumstances on or prior to the Option Closing Date which would
permit termination of this Agreement pursuant to Section 11.
SECTION 8. Payment of Expenses. Other than the fees and
expenses of the Company's counsel and accountants, the Selling Stockholders will
pay all costs, expenses, fees, disbursements and taxes incident to the sale of
the Shares contemplated hereby, including without limitation (i) the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), the Prospectus, each Preliminary
Prospectus and all amendments and supplements to any of them prior to or during
the period specified in Section 6(b), (ii) the printing, reproduction and
distribution of this Agreement and all other underwriting and selling group
documents by mail, telex or other means, (iii) the registration with the
Commission of the Shares, (iv) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
and the preparation, printing and distribution of Preliminary and Supplemental
Blue Sky Memoranda and Legal Investment Survey (including the reasonable fees
and disbursements of the Underwriters' counsel relating to the foregoing), (v)
filing fees incurred in connection with the National Association of Securities
Dealers, Inc.'s review of the offering's underwriting terms and arrangements,
(vi) the fees and expenses of the Registrar and Transfer Agent for the Shares
and its counsel and (vii) the fees and expenses of the Selling Stockholders'
counsel and accountants.
If the sale of the Shares provided for herein is not
consummated because of the failure to satisfy any condition to the obligations
of the Underwriters, because of any breach of any representation, warranty or
covenant of the Company or the Selling Stockholders contained in this Agreement,
because of any termination pursuant to Section 11 hereof or because of any
refusal, failure or inability of the Company or the Selling Stockholders to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any Underwriter, the Selling Stockholders shall reimburse
the Underwriters for all of their reasonable out-of-pocket expenses incurred in
connection with marketing and preparing for the offering of the Shares,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and the Selling Stockholders and each person, if any,
who controls any Underwriter or any Selling Stockholder within the
meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) (including, without
limiting the foregoing, the reasonable legal and other expenses
incurred in connection with investigating or defending or preparing to
defend or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action, as such expenses are
incurred), insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any Preliminary Prospectus, or are
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except (i) the Company shall not be liable to
any Underwriter under the indemnity agreement in this paragraph (a)
with respect to any Preliminary Prospectus to the extent that such
losses, claims, damages, liabilities or expenses result from the fact
that such Underwriter sold Shares to a person as to whom there was not
sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if
the loss, claim, damage or liability of such Underwriter results from
an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was corrected in the Prospectus or in the
Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such Underwriter and (ii)
insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged
<PAGE>
untrue statement or omission made in reliance upon and in conformity
with (x) written information furnished to the Company by or on behalf
of the Underwriters specifically for use in the Registration Statement,
the Prospectus or any Preliminary Prospectus, 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 (and any Preliminary Prospectus) concerning the terms of the
offering by the Underwriters, (B) the second and third paragraphs on
page 3 of the Prospectus (and any Preliminary Prospectus) concerning
over-allotment and stabilization by the Underwriters and exemptions
from Rules 10b-6, 10b-7 and 10b-8 under the Exchange Act and (C) the
text under the caption "Underwriting" in the Prospectus (and any
Preliminary Prospectus) concerning the terms of the offering by the
Underwriters and the delivery of Shares pursuant thereto (collectively,
the "Underwriters' Information") or (y) written information furnished
to the Company by or on behalf of the Selling Stockholders specifically
for use in the Registration Statement, the Prospectus or any
Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Selling Stockholder consists of the
information under the caption "Selling Shareholders" in the Prospectus
(or any Preliminary Prospectus), other than in respect of the Company's
outstanding capitalization (collectively, the "Selling Stockholders'
Information"). This indemnity agreement will be in addition to any
liability which the Company may otherwise have to the persons referred
to above in this Section 9(a). Notwithstanding anything to the contrary
in this Agreement, the Company shall not be liable to any Selling
Stockholder under the indemnity agreement in this paragraph (a) or for
any breach of any representation or warranty of the Company set forth
in Section 2 with respect to the statements in the Prospectus (or any
Preliminary Prospectus) relating to the terms and provisions of the
Shareholders Agreement.
(b) The Selling Stockholders agree, jointly and severally, to
indemnify and hold harmless each of the Underwriters and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act and the
Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either such Section, from and against any and all losses,
claims, damages and liabilities (or actions in respect thereof)
(including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending
or preparing to defend or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action, as
such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus or any Preliminary
Prospectus or are caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only in each case with reference
to the Selling Stockholders' Information; provided, however, that the
Selling Stockholders shall not be liable to any Underwriter under the
indemnity agreement in this paragraph (b) with respect to any
<PAGE>
Preliminary Prospectus to the extent that such losses, claims, damages,
liabilities or expenses result solely from the fact that such
Underwriter sold Shares to a person as to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of
the Prospectus or of the Prospectus as then amended or supplemented in
any case where such delivery is required by the Act if the loss, claim,
damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus or in the Prospectus
as then amended or supplemented if the Company had previously furnished
copies thereof to such Underwriter. This indemnity agreement will be in
addition to any liability which the Selling Stockholders may otherwise
have to the persons referred to above in this Section 9(b).
Notwithstanding anything to the contrary in this Agreement, the Selling
Stockholders shall not be liable to the Company under the indemnity
agreement in this paragraph (b) or for any breach of any representation
or warranty of the Selling Stockholders set forth in Section 3 with
respect to the statements in the Prospectus (or any Preliminary
Prospectus) relating to the terms and provisions of the Shareholders
Agreement.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with investigating or
defending or preparing to defend or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action,
as such expenses are incurred) insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus or any Preliminary
Prospectus, or are caused by any omission or 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. This indemnity agreement will be in
addition to any liability which the Underwriters may otherwise have to
the persons referred to above in this Section 9(c).
(d) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing; however, the omission to so notify
the indemnifying party shall relieve the indemnifying party from
liability under the three preceding paragraphs only to the extent
prejudiced thereby. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
<PAGE>
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may desire, to assume
the defense thereof through counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof, other
than reasonable costs of investigation (unless such indemnified party
reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to
those available to such indemnifying party in which event the
indemnified party shall be reimbursed by the indemnifying party for the
reasonable expenses incurred in connection with retaining separate
legal counsel). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any claim or
pending or threatened proceeding in respect of the indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
(e) If the indemnification provided for in this Section 9 is
insufficient or unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses, in such proportion as is
appropriate to reflect the relative fault of the Company, the Selling
Stockholders and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company, the Selling Stockholders and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(f) The Company, each Selling Stockholder and each of the
Underwriters agree that it would not be just and equitable if
contribution pursuant to Section 9(e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to in the immediately preceding paragraph
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
<PAGE>
Section 9(e), in no event shall any Underwriter be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
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 to contribute pursuant to Section 9(e) are several in
proportion to the respective number of Firm Shares set forth opposite
their names in Schedule I hereto and not joint.
(g) The Company, the Selling Stockholders and the Underwriters
agree that any indemnity provision contained in Section 5.5 of the
Shareholders Agreement or any other agreement between the Company on
the one hand and the Selling Stockholders on the other shall be
superseded for all purposes by this Section 9 in respect of the offer
and sale of the Shares.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company or the
Selling Stockholders submitted pursuant hereto, including indemnity and
contribution agreements, shall remain operative and in full force and effect,
regardless of any investigation, or any statement as to the results thereof,
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or
controlling persons, or by any Selling Stockholder or any person controlling any
Selling Stockholder, and shall survive acceptance of and payment for the Shares
hereunder.
SECTION 11. Termination. This Agreement may be
terminated for any reason at any time prior to the delivery
of and payment for the Shares on the Initial Closing Date or the Option Closing
Date, as the case may be, by the Underwriters upon the giving of written notice
by Lazard Freres & Co. LLC of such termination to the Company and the Selling
Stockholders, if prior to such time (i) there has been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any Material Adverse Effect, whether or not arising in the ordinary
course of business, (ii) there has occurred any outbreak or escalation of major
hostilities or other national or international calamity or crisis or material
adverse change in existing national or international financial, political,
economic or securities market conditions, the effect of which is such as to make
it, in the judgement of Lazard Freres & Co. LLC, impracticable or inadvisable to
market the Shares in the manner contemplated in the Prospectus or enforce
contracts for the sale of the Shares, or (iii) trading in the Common Stock of
the Company has been suspended by the Commission or a national securities
exchange, or trading generally on either the American Stock Exchange or the New
York Stock Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
<PAGE>
provisions of Section 8, the indemnity agreement and contribution provisions set
forth in Section 9, and the provisions of Section 15 shall remain in effect and,
if the Underwriters shall have purchased any Shares on the Initial Closing Date
prior to such termination, then all representations and warranties of the
Company and the Selling Stockholders set forth in or made pursuant to this
Agreement and all obligations of the Company pursuant to Section 6 hereof shall
survive such termination.
SECTION 12. Default of Underwriters. If, on the Initial
Closing Date or the Option Closing Date, as the case may be, any one or more of
the Underwriters shall fail or refuse to purchase Shares that it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Shares to
be purchased on such date by all Underwriters, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bear to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as Lazard Freres & Co. LLC may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 4 be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Initial Closing Date or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to the
Underwriters, the Company and the Selling Stockholders for the purchase of such
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any nondefaulting Underwriter or the
Company or the Selling Stockholders, except for the expenses to be paid or
reimbursed by the Company pursuant to Section 8 and the respective obligations
of the Company, the Selling Stockholders and the Underwriters pursuant to
Section 9; provided, however, that if the Underwriters shall have purchased any
Shares on the Initial Closing Date prior to such termination, then all
representations and warranties of the Company and the Selling Stockholders set
forth in or made pursuant to this Agreement and all obligations of the Company
pursuant to Section 6 hereof shall survive such termination. In any such case
either the Underwriters or the Company shall have the right to postpone the
Initial Closing Date or the Option Closing Date, as the case may be, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
SECTION 13. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Lazard Freres & Co. LLC,
<PAGE>
30 Rockefeller Plaza, New York, NY 10020, Attention: Syndicate Department;
notices to the Company shall be directed to it at Crown Cork & Seal Company,
Inc., 9300 Ashton Road, Philadelphia, PA 19136, facsimile transmission no. (215)
698-7050, Attention: Alan W. Rutherford, Executive Vice President and Chief
Financial Officer, and Richard L. Krzyzanowski, Executive Vice President,
Secretary and General Counsel; and notices to the Selling Stockholders shall be
directed to Compagnie Generale d'Industrie et de Participations, 89 rue
Taitbout, 75009 Paris, France, Attention: Michel Renault, with a copy to
Sullivan & Cromwell, 125 Broad Street, New York, NY 10004, facsimile
transmission no. (212) 558-3588, Attention: Allan M. Chapin.
SECTION 14. Parties. This Agreement shall inure to the benefit
of and be binding upon the Company, its directors and officers who signed the
Registration Statement, the Underwriters, the Selling Stockholders, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 15. Governing Law. This Agreement shall
be governed by, and construed in accordance with, the law
of the State of New York.
SECTION 16. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return to us seven counterparts
hereof.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.,
By /s/ Craig R.L. Calle
Name: Craig R.L. Calle
Title: Senior Vice President-
Finance and Treasurer
<PAGE>
COMPAGNIE GENERALE
D'INDUSTRIE ET DE PARTICIPATIONS,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Chairman and CEO
SOFISERVICE,
By /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Attorney-in-Fact
<PAGE>
Confirmed and Accepted, as of the date first above written:
LAZARD FRERES & CO. LLC
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
By: LAZARD FRERES & CO. LLC
By: /s/ James L. Kempner
Name: James L. Kempner
Title: Managing Director
Acting severally on behalf of
themselves as Underwriters
<PAGE>
Schedule I
Number of Firm
Shares
Underwriters to be Purchased
Lazard Freres & Co. LLC...................................... 1,000,000
CS First Boston Corporation.................................. 1,000,000
Salomon Brothers Inc......................................... 1,000,000
---------
Total............................................... 3,000,000
=========
<PAGE>
Schedule II
Number of
Additional
Shares to be
Number of Firm Sold if Maximum
Selling Stockholder Shares to be Sold Option Exercised
Compagnie Generale
d'Industrie et de
Participations 2,331,024 450,000
Sofiservice 668,976 0
------- -------
Total 3,000,000 450,000
========= =========
<PAGE>
Schedule III
Material Subsidiaries
CONSTAR International Inc.
Crown Beverage Packaging, Inc.
Exhibit D
October 24, 1996
Lazard Freres & Co. LLC
CS First Boston Corporation
Salomon Brothers Inc
c/o Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Lazard Capital Markets
CS First Boston Limited
Salomon Brothers International Limited
c/o Lazard Capital Markets
21 Moorfields,
London EC2P 2HT England
Dear Sirs:
This letter is in reference to (i) the U.S. Underwriting
Agreement (the "U.S. Underwriting Agreement"), to be entered into today among
Crown Cork & Seal Company, Inc. ("Crown"), Compagnie Generale d'Industrie et de
Participations ("CGIP"), Sofiservice ("Sofiservice" and, together with CGIP the
"Selling Stockholders") and Lazard Freres & Co. LLC, CS First Boston Corporation
and Salomon Brothers Inc, as representatives of the several U.S. underwriters to
be named in Schedule I thereto (the "U.S. Underwriters") with respect to up to
8,787,500 shares (the "U.S. Common Shares") of Common Stock, par value $5.00 per
share ("Common Stock"), of Crown, (ii) the International Underwriting Agreement
(the "International Underwriting Agreement"), to be entered into today among
Crown, the Selling Stockholders and Lazard Capital Markets, CS First Boston
Limited and Salomon Brothers International Limited, as representatives of the
several international underwriters to be named in Schedule I thereto (the
"International Underwriters") with respect to up to 1,850,000 shares (the
"International Shares") of Common Stock, and (iii) the Underwriting Agreement
(together with the U.S. Underwriting Agreement and the International
Underwriting Agreement, the "Underwriting Agreements"), to be entered into today
among Crown, the Selling Stockholders and Lazard Freres & Co. LLC, CS First
Boston Corporation and Salomon Brothers Inc (together with the U.S. and
International Underwriters, the "Underwriters") with respect to up to 3,450,000
shares (the "Preferred Shares" and together with the U.S. Shares and the
<PAGE>
International Shares, the "Shares") of 4.5% Convertible Preferred Stock, par
value $41.8875 per share, of Crown.
In the event that the indemnification provided under Section 9
of the respective Underwriting Agreements and the contribution provided for
under Section 9(e) of the respective Underwriting Agreements is insufficient or
unavailable to the respective Underwriters thereunder (or any person who
controls an Underwriter within the meaning of Section 15 of the Securities Act
of 1933 or Section 20 of the Securities Exchange Act of 1934) with respect to
any losses, claims, damages or liabilities ("Losses") referred to in Sections
9(a) and 9(b) of the respective Underwriting Agreements of such Underwriters or
such controlling persons (other than any Losses referred to in Section 9(a)(i)
and (ii)(x) of the Underwriting Agreements), the Selling Stockholders shall
contribute to such Underwriters and such controlling persons in respect of such
Losses in such proportion as is appropriate to reflect the relative benefits
received by the Selling Stockholders on the one hand and such Underwriters on
the other from the offering of the Shares or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect
both such relative benefits as well as the relative fault (as determined
pursuant to the respective Underwriting Agreements) of such Underwriters, on the
one hand, and the Selling Stockholders and Crown, on the other, in connection
with the statements or omissions which resulted in such Losses as well as other
relevant equitable considerations. The relative benefits received by the Selling
Stockholders on the one hand and such 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 Selling Stockholders bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth in the table on the cover page of the prospectuses relating to
the offerings.
<PAGE>
Please sign in the space indicated below to indicate your
agreement with the foregoing.
Very truly yours,
COMPAGNIE GENERALE D'INDUSTRIE
ET DE PARTICIPATIONS
By: /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Chairman and CEO
SOFISERVICE
By: /s/ Ernest-Antoine Seilliere
Name: Ernest-Antoine Seilliere
Title: Attorney-in-Fact
Accepted as of the date hereof:
Lazard Freres & Co. LLC
CS First Boston Corporation
Salomon Brothers Inc
By: /s/ James L. Kempner
Name: James L. Kempner
Title: Managing Director
Lazard Capital Markets
CS First Boston Limited
Salomon Brothers International Limited
By: /s/ James L. Kempner
Name: James L. Kempner
Title: Managing Director
On behalf of each of the Underwriters
